Proposed Sections 
 Before an agency may permanently adopt a new or amended section, or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before any action may be taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive sections, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members. 
 Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of bold text. [Brackets] indicate deletion of existing 
material within a section. 
 
   
  TITLE 22. EXAMINING BOARDS 
 Part XV. Texas State Board of Pharmacy 
  Chapter 291. Pharmacies 
  
  All Classes of Pharmacy 
 
  22 TAC sec.sec.291.5, 291.7, 291.12, 291.15-291.17 
 
  The Texas State Board of Pharmacy proposes amendments to  ssec.291.5, 291. 7, 
291.12, and 291.15-291.17, concerning Closed Pharmacies, Change of Pharmacist 
Employment, Fire or Other Disaster, Notification of Theft or Loss of a 
Controlled Substance, Definitions, and Controlled Substance Inventory 
Requirements. 
 These amendments if adopted will require pharmacies to: (1) inventory 
butorphanol (Stadolz), nalbuphine (Nubain) and carisoprodol (Soma) annually and 
on change of pharmacist-in-charge; and report a theft or significant loss of 
dangerous drugs. 
 Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary, has 
determined that for the first five-year period the sections are in effect there 
will be no fiscal implications as a result of enforcing or administering the 
sections. 
 Mr. Brinkley also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be the protection of the health of the citizens of 
the State of Texas through better control of these drugs. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed. 
 Comments may be submitted to Fred S. Brinkly, Jr., R.Ph., M.B.A., Texas State 
Board of Pharmacy, 8505 Cross Park Drive, Suite 110 Austin, Texas 78754-4533. 
 The amendments are proposed under the Texas Pharmacy Act (Texas Civil Statutes, 
Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the 
authority to adopt rules for the proper administration and enforcement of the 
Act; and sec.17(b), which provided the Board with the authority to specify the 
minimum standards for maintenance of prescription drug records in a pharmacy. 
 
 
  sec.291.5. Closed Pharmacies. <ol> The pharmacist-in-charge of a pharmacy that 
ceases to operate as a pharmacy, shall within 10 days of the cessation of 
operation, forward to the board a written notice of the closing which includes 
the following information: 
 
  (1)-(2) (No change.) 
   
  (3) a statement attesting that an inventory <nl>as specified in sec.291. 17 of 
this title (relating to Inventory Requirements)<ol> [of all controlled 
substances on hand] has been conducted; and 
   
  (4) (No change.) 
 
     
  sec.291.7. Change of Pharmacist Employment. 
 
  (a) (No change.) 
   
  (b) Change of pharmacist-in-charge of a pharmacy. 
 
  (1) On the date of change of the pharmacist-in-charge of a Class A (Community) 
or Class C (Institutional) Pharmacy, an inventory of the following [controlled 
substances] shall be taken: 
 
  (A) (No change.) 
   
  (B) all dosage forms containing pentazocine (<nl>e.g., <ol> Talwin); 
   
  (C) all dosage forms containing phentermine (<nl>e.g., <ol> Ionamin, Fastin, 
Adipex-P, etc.); 
   
  (D) all dosage forms containing diazepam (<nl>e.g., <ol> Valium); 
   
  (E) all dosage forms containing phendimetrazine ( <nl>e.g.,<ol> Bontril, 
Plegine, Prelu-2, etc.); 
   
  (F) all [oral liquid] dosage forms containing codeine; 
   
  (G) all dosage forms containing hydrocodone (<nl>e.g., <ol> Tussionex, 
Tussend, Vicodin, Hycomine, etc.); 
   
  (H)  all dosage forms containing alprazolam (<nl>e.g., <ol> Xanax); [and] 
   
  (I) all dosage forms containing triazolam (<nl>e.g., <ol> Halcion)[.] <nl>; 
   
  <nl>(J) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(K) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(L) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (2)-(4) (No change.) 
 
       
  sec.291.12. Fire or Other Disaster. If a pharmacy experiences a fire or other 
disaster, the following requirements are applicable. 
 
  (1) Responsibilities of the pharmacist-in-charge. 
 
  (A) (No change.) 
   
  (B) The pharmacist-in-charge or designated agent shall comply with [one of] 
the following procedures. 
 
  (i) If controlled substances <nl>, dangerous drugs,<ol> or DEA order forms are 
lost or destroyed in the disaster, the pharmacy shall<nl>: 
 
  <nl>(I) notify the Drug Enforcement Administration (DEA), Department of Public 
Safety (DPS) and Texas State Board of Pharmacy (Board) of the loss of the 
controlled substances or order forms. A pharmacy shall be in compliance with 
this section by submitting to <nl>each of these agencies<ol> [the board] a copy 
of the Drug Enforcement Administration's report of theft or loss of controlled 
substances, DEA Form-106, <nl>immediately on discovery<ol> [within 1O days] of 
the loss<nl>; and 
   
  <nl>(II) notify the Texas State Board of Pharmacy in writing of the loss of 
the dangerous drugs by submitting a list of the dangerous drugs lost. 
     
  (ii) If the extent of the loss of controlled substances <nl>or dangerous 
drugs<ol> is not able to be determined, the pharmacy shall: 
 
  (I) take a new, complete inventory of all remaining  <nl>drugs specified in 
sec.291.17(c) of this title (relating to Inventory Requirements);<ol> 
[controlled substances; and] 
   
  (II) submit to DEA[,] <nl>and<ol> DPS [and the board] a statement attesting 
that the loss of controlled substances is indeterminable and that a new, 
complete inventory of all remaining controlled substances was conducted and 
state the date of such inventory[.] <nl>and 
   
  <nl>(III) submit to the board a statement attesting that the loss controlled 
substances and dangerous drugs is indeterminable and that a new, complete 
inventory of the drugs specified in sec.291.17(c) of this title was conducted 
and state the date of such inventory. 
       
  (C) (No change.) 
   
  (D) If the pharmacy moves to a temporary location, the pharmacist shall 
<nl>comply with  s291.2 of this title (relating to Change of Location and/or 
name). If the pharmacy returns to the original location, the pharmacist-in-
charge shall again comply with sec.291.2 of this title. <ol> [send written 
notification to the board of the change of address within 10 days and further, 
shall send written notification to the board of the return to the permanent 
location within 10 days of the return]. 
   
  (E)-(F) (No change.) 
     
  (2) (No change.) 
 
     
  sec.291.15. Notification of Theft or loss of a Controlled Substance <nl>or a 
Dangerous Drug. 
 
  <nl>(a) Controlled Substances. <ol>For the purposes of the Act, sec.32, 
subsection (a) the theft or significant loss of any controlled substance by a 
pharmacy shall be reported in writing to the board <nl>immediately on<ol> 
[within 10 days of] discovery of such theft or loss. A pharmacy shall be in 
compliance with this subsection by submitting to the board a copy of the drug 
enforcement administration report of theft or loss of controlled substances, DEA 
Form 106, or by submitting a list of all controlled substances stolen or lost. 
   
  <nl>(b) Dangerous Drugs. A pharmacy shall report in writing to the board 
immediately on discovery, the theft or significant loss of any dangerous drug by 
submitting a list of the name and quantity of all dangerous drugs stolen or 
lost. 
 
     
  sec.291.16. Definitions.  Any term not defined in this chapter shall have the 
definition set out in <nl>the Texas Pharmacy Act, sec.5 (Texas Civil Statutes, 
Article 4542a-1)<ol> [House Bill 1628, sec.5, Acts of the 67th Legislature, 
1981]. 
 
   
  sec.291.17. [Controlled Substances] Inventory Requirements. 
 
  (a)  General Requirements. 
 
  (1)-(4) (No change.) 
   
  (5) The inventory shall include all <nl>stocks of the following drugs <ol> 
[controlled substances] on hand on the date of the inventory (including any 
[controlled substances] which are out-of-date)<nl>:<ol> [.] 
 
  <nl>(A) all controlled substances; 
   
  <nl>(B) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(C) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(D) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (6) (No change.) 
   
  (7) The inventory record shall indicate whether the inventory is taken as of 
the opening of business or as of the close of business on the inventory 
date<nl>. If the pharmacy is open 24 hours a day, the opening of business shall 
be 12:01 a.m. and the close of business shall be 12 midnight. The inventory 
shall indicate that it is a record of drugs on-hand as of the opening or closing 
of the business day.<ol> [,with the following exceptions. 
 
  [(A) In a Class A (Community) Pharmacy that is open 24 hours a day, the 
inventory record shall indicate the prescription number of the last prescription 
filled during the inventory. 
   
  [(B) In a Class C (Institutional) Pharmacy that is open 24 hours a day, the 
inventory record shall indicate the time the inventory was completed.] 
     
  (8) The person(s) taking the inventory and the pharmacist-in-charge shall 
indicate the time the inventory was taken (as specified in paragraph (7) of this 
subsection) and shall sign and date the inventory with the date the inventory 
was taken. The signature of the pharmacist-in-charge and the date of the 
inventory shall be notarized within 72 hours or three working days of the 
completed <nl>initial,<ol> annual<nl>, change of ownership and closing<ol> 
[controlled substances] inventory. 
   
  (9) (No change.) 
   
  (10) The person(s) taking the inventory shall make an estimated count or 
measure of all substances listed in Schedule III, IV, or V <nl>and dangerous 
drugs <ol>, unless the container holds more than 1,000 tablets or capsules in 
which case, an exact count of the contents must be made. 
   
  (11) The inventory of Schedule I and II controlled substances shall be listed 
separately from the inventory of Schedule III, IV, and V controlled substances 
<nl>which shall be listed separately from the inventory of dangerous drugs. 
   
  (12) If the pharmacy maintains a perpetual inventory of <nl>any of the drugs 
required to be inventoried <ol> [controlled substances], the perpetual inventory 
shall be reconciled on the date of the inventory. 
     
  (b) Initial Inventory. 
 
  (1) A new Class A (Community) pharmacy or Class C (Institutional) pharmacy 
[that is registered under the Texas and Federal Controlled Substances Acts] 
shall take an inventory [of all controlled substances on hand] on the opening 
day of business. <nl>Such inventory shall include all stocks (including any out-
of-date drugs) of the following: 
 
  <nl>(A) all controlled substances; 
   
  <nl>(B) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(C) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(D) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (2) In the event the Class A or C pharmacy commences business with <nl>none of 
the drugs specified in paragraph (1) of this subsection <ol> [no controlled 
substances] on hand, the pharmacy shall record this fact as the initial 
inventory. 
   
  (3) The initial inventory shall serve as the pharmacy's inventory until the 
next May 1, or until the pharmacy's regular <nl>general<ol> physical inventory 
date, at which time the Class A or C Pharmacy shall take an <nl>annual <ol> 
inventory <nl>as specified in subsection (c) of this section.<ol> [of all 
controlled substances on hand; the] <nl>Such<ol> inventory may be taken within 
four days of  <nl>the specified inventory<ol> [this] date <nl>and shall include 
all stocks (including out-of-date drugs). 
     
  (c) Annual Inventory. 
 
  (1) A Class A or C pharmacy shall take an inventory [of all controlled 
substances on hand (including any which are out-of-date)] on May 1 of each year, 
or on the pharmacy's regular general physical inventory date<nl>.<ol>[;] 
<nl>Such <ol> inventory may be taken within four days of <nl>the specified 
inventory <ol> [this] date <nl>and shall include all stocks (including out-of-
date drugs) of the following: 
 
  <nl>(A) all controlled substances; 
   
  <nl>(B) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(C) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(D) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (2) A Class A or C pharmacy applying for renewal of a pharmacy license shall 
include as a part of the pharmacy license renewal application a statement 
attesting that an annual [controlled substances] inventory has been conducted, 
the date of the inventory, and the name of the person taking the inventory. 
     
  (d) Change of Ownership. 
 
  (1) A Class A or C pharmacy that changes ownership shall take an inventory of 
all <nl>of the following drugs<ol> [controlled substances] on hand (including 
any [controlled substances] which are out-of-date) on the date of change of 
ownership <nl>: <ol>[.] 
 
  <nl>(A) all controlled substances; 
   
  <nl>(B) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(C) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(D) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (2)-(3) (No change.) 
     
  (e) Closed Pharmacies. The pharmacist-in-charge of a Class A or C pharmacy 
that ceases to operate as a pharmacy shall forward to the board, within 10 days 
of the cessation of operation, a statement attesting that an inventory of the 
<nl>drugs specified in subsection (c) of this section<ol> [controlled 
substances] on hand has been conducted, the date of closing, and a statement 
attesting the manner by which the <nl>dangerous drugs and<ol> controlled 
substances possessed by such pharmacy were transferred or disposed. 
   
  (f) Requirements for Class C (Institutional) Pharmacies. 
 
  (1) (No change.) 
   
  (2) Annual Inventory. 
 
  (A) An inventory shall be conducted [of all controlled substances on hand] on 
May 1 of each year, or on the pharmacy's regular general physical inventory 
date<nl>.<ol>[;] <nl>Such<ol> [the] inventory may be taken within four days of 
<nl>the specified inventory<ol> [this] date <nl>and shall include all stocks 
(including out-of-date drugs) of the following: 
 
  <nl>(i) all controlled substances: 
   
  <nl>(ii)<nl> all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(iii)<nl> all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(iv)<nl> all dosage forms containing carisoprodol (e.g., Soma). 
     
  (B) The annual inventory of the institution shall include all <nl>of the drugs 
specified in subparagraph (A) of this paragraph<ol> [controlled substances] on 
hand in the pharmacy. 
   
  (C) The inventory of the institution shall be maintained in the pharmacy; if 
an inventory [of controlled substances] is conducted in other departments within 
the institution, the inventory of the pharmacy shall be listed separately, as 
follows: 
 
  (i) the inventory of <nl>drugs<ol> [controlled substances] on hand in the 
pharmacy shall be listed separately from the inventory of <nl>drugs <ol> [the 
controlled substances] on hand in the other areas of the institution; and 
   
  (ii) the inventory of <nl>drugs<ol> [controlled substances] on hand in all 
other departments shall be identified by department. 
         
  (g) Change of pharmacist-in-charge of a pharmacy. 
 
  (1) On the date of change of the pharmacist-in-charge of a Class A (Community) 
or Class C (Institutional) pharmacy, an inventory of the following <nl>drugs<ol> 
[controlled substances] shall be taken: 
 
  (A)  (No change.) 
   
  (B) all dosage forms containing pentazocine (<nl>e. g.,<ol> Talwin); 
   
  (C) all dosage forms containing phentermine (<nl>e. g.,<ol> Ionamin, Fastin, 
Adipex-P, etc.); 
   
  (D) all dosage forms containing diazepam (<nl>e g.,<ol> Valium); 
   
  (E) all dosage forms containing phendimetrazine ( <nl>e.g.,<ol> Bontril, 
Plegine, Prelu-2, etc.); 
   
  (F) all [oral liquid] dosage forms containing codeine; 
   
  (G) all dosage forms containing hydrocodone (<nl>e.g., <ol> Tussionex, 
Tussend, Vicodin, Hycomine, etc.); 
   
  (H)  all dosage forms containing alprazolam (<nl>e.g., <ol> Xanax); [and] 
   
  (I) all dosage forms containing triazolam (<nl>e. g.,<ol> Halcion)[.] <nl>; 
   
  <nl>(J) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(K) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(L) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (2)-(4) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 3, 1993. 
 TRD-9319719 
  Fred S. Brinkley, Jr., R.Ph., M.B.A. 
 Executive Director/Secretary 
 Texas State Board of Pharmacy 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 832-0661 
         
               
  All Classes of Pharmacy 
 
  22 TAC sec.291.11 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas State 
Board of Pharmacy or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The Texas State Board of Pharmacy proposes the repeal of  sec.291.11 
concerning Regulation. 
 The repeal of this section if adopted will eliminate a section of the rules 
which is no longer necessary because of adoption of other rules. 
 Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary has 
determined that for the first five-year period the repeal is in effect there 
will be no fiscal implications as a result of enforcing or administering the 
repeal. 
 Mr. Brinkley also has determined that for each year of the first five years the 
repeal is in effect the public benefit anticipated as a result of enforcing the 
repeal as proposed will be the protection of the health of the citizens of the 
State of Texas through establishment of standards for pharmacy operations. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the repeal as proposed. 
 Comments may be submitted to Fred S. Brinkley, Jr., R.Ph., M.B.A., Texas State 
Board of Pharmacy, 8505 Cross Park Drive, Suite 110 Austin, Texas 78754-4533. 
 The repeal is proposed under the Texas Pharmacy Act (Texas Civil Statutes, 
Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the 
authority to adopt rules for the proper administration and enforcement of the 
Act. 
 
 
  sec.291.11. Regulation. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 2, 1993. 
 TRD-9319722 
  Fred S. Brinkley, Jr., R.Ph., M.B.A 
 Executive Director/Secretary 
 Texas State Board of Pharmacy 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 832-0661 
         
           
  Community Pharmacy (Class A) 
 
  22 TAC sec.sec.291.32, 291.34, 291.36 
 
  The Texas State Board of Pharmacy proposes amendments to  ssec.291.32, 291.34, 
and 291.36, concerning Personnel, Records, and Class A Pharmacies Compounding 
Sterile Pharmaceuticals. 
 These amendments if adopted will correct references to rule citations in the 
Class A Pharmacy rules in conjunction with amendments to the rules relating to 
inventory requirements. 
 Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary, has 
determined that for the first five-year period the sections are in effect there 
will be no fiscal implications as a result of enforcing or administering the 
sections. 
 Mr. Brinkley also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be the protection of the health of the citizens of 
the State of Texas through the adoption of rules governing the operation of 
Class A Pharmacies. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed. 
 Comments may be submitted to Fred S. Brinkley, Jr., R.Ph., M.B.A., Texas State 
Board of Pharmacy, 8505 Cross Park Drive, Suite 110 Austin, Texas 78754-4533. 
 The amendments are proposed under the Texas Pharmacy Act (Texas Civil Statutes, 
Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the 
authority to adopt rules for the proper administration and enforcement of the 
Act; and sec.17(b), which provided the Board with the authority to specify the 
minimum standards for maintenance of prescription drug records in a pharmacy. 
 
 
  sec.291.32. Personnel. 
 
  (a) Pharmacist-in-charge. 
 
  (1)  General. 
 
  (A) (No change.) 
   
  (B) The pharmacist-in-charge shall comply with the provisions of sec.291.17 of 
this title (relating to [Controlled Substances] Inventory Requirements). 
       
  (b)-(d) (No change.) 
 
     
  sec.291.34. Records. 
 
  (a)-(f) (No change.) 
   
  (g) Other Records. Other records to be maintained by the pharmacy: 
 
  (1)-(5) (No change.) 
   
  (6) a hard-copy of [controlled substance] inventories required by sec.291.17 
of this title (relating to [Controlled Substances] Inventory Requirements); 
   
  (7)-(10) (No change.) 
     
  (h)-(j) (No change.) 
 
     
  sec.291.36. Class A Pharmacies Compounding Sterile Pharmaceuticals. 
 
  (a)-(b) (No change.) 
   
  (c) Personnel. 
 
  (1)  Pharmacist-in-charge. 
 
  (A) General. 
 
  (i) (No change.) 
   
  (ii) The pharmacist-in-charge shall comply with the provisions of sec.291.17 
of this title (relating to [Controlled Substances] Inventory Requirements). 
     
  (B) (No change.) 
     
  (2)-(4) (No change.) 
     
  (d) (No change.) 
   
  (e) Records. 
 
  (1)-(8) (No change.) 
   
  (9) Other Records. Other records to be maintained by the pharmacy: 
 
  (A)-(E) (No change.) 
   
  (F) a hard-copy of [controlled substance] inventories required by sec.291.17 
of this title (relating to [Controlled Substances] Inventory Requirements); 
   
  (G)-(I) (No change.) 
     
  (10)-(11) (No change.) 
     
  (f) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 2, 1993. 
 TRD-9319723 
  Fred S. Brinkley, Jr., R.Ph., M.B.A 
 Executive Director/Secretary 
 Texas State Board of Pharmacy 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 832-0661 
         
               Chapter 303. Destruction of Dangerous Drugs and Controlled 
Substances 
  
  22 TAC sec.303.1, sec.303.2 
 
  The Texas State Board of Pharmacy proposes amendments to  s303.1 and 
sec.303.2, concerning Destruction of Dispensed Drugs and Disposal of Stock 
Prescription Drugs. 
 These amendments if adopted will outline procedures for the destruction of 
butorphanol (Stadol), nalbuphine (Nubain) and carisoprodol (Soma) and require a 
pharmacy to maintain a record of destruction of these drugs. 
 Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary has 
determined that for the first five-year period the sections are in effect there 
will be no fiscal implications as a result of enforcing or administering the 
sections. 
 Mr. Brinkley also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be the protection of the health of the citizens of 
the state of Texas through better control of the destruction of these drugs. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Fred S. Brinkley, Jr., R.Ph., 
M.B.A., Texas State Board of Pharmacy, 8505 Cross Park Drive, Suite 110, Austin, 
Texas 78754-4533. 
 The amendments are proposed under the Texas Pharmacy Act (Texas Civil Statutes, 
Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the 
authority to adopt rules for the proper administration and enforcement of the 
Act; and sec.17(b), which provided the Board with the authority to specify the 
minimum standards for maintenance of prescription drug records in a pharmacy. 
 
 
  sec.303.1. Destruction of Dispensed Drugs. 
 
  (a) (No change.) 
   
  (b) Drugs Returned to a Pharmacy. A pharmacist, licensed by the board, is 
authorized to destroy dangerous drugs and controlled substances which have been 
previously dispensed to a patient and returned to a pharmacy by the patient or 
an agent of the patient. The following procedures shall be followed in 
destroying these drugs. 
 
  (1) Dangerous Drugs other than tripelennamine (<nl>e.g., <ol> PBZ), 
butorphanol ( <nl>e.g.,<ol> Stadol), [and] nalbuphine (<nl>e.g.,<ol> Nubain) 
<nl>, and carisoprodol (e.g., Soma). 
 
  (A)-(B) (No change.) 
     
  (2) Controlled Substances and tripelennamine (<nl>e.g., <ol> PBZ), butorphanol 
( <nl>e.g.,<ol> Stadol), [and] nalbuphine (<nl>e.g.,<ol> Nubain) <nl>, and 
carisoprodol (e.g., Soma). 
 
       
  sec.303.2. Disposal of Stock Prescription Drugs. 
 
  (a) (No change.) 
   
  (b) Disposal of stock dangerous drugs. A pharmacist, licensed by the board, is 
authorized to destroy stock dangerous drugs owned by a licensed pharmacy if such 
dangerous drugs are destroyed in a manner to render the drugs unfit for human 
consumption; provided, however, the following procedures shall be followed in 
destroying any brand or dosage form of tripelennamine ( <nl>e.g. ,<ol> PBZ), 
butorphanol (<nl>e.g.,<ol> Stadol), [and] nalbuphine (<nl>e.g., <ol> 
Nubain)<nl>, and carisoprodol (e.g., Soma). 
   
  (c) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 3, 1993. 
 TRD-9319720 
  Fred S. Brinkley, Jr., R. Ph., M.B.A. 
 Executive Director/Secretary 
 Texas State Board of Pharmacy 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 832-0661 
         
                 
  TITLE 25. HEALTH SERVICES 
 Part II. Texas Department of Mental Health and Mental Retardation 
  Chapter 407. Internal Facilities Management 
  
  Financial Services 
 
  25 TAC sec.sec.407.1-407.6, 407.22-407.24 
 
  The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes 
amendments to sec.sec.407.1-407.6 and  ssec.407.22-407.24, concerning standard 
operating procedures and accounting. The sections would be consolidated as 
financial services under an undesignated head. 
 The proposed amendments would primarily provide more comprehensive guidelines 
and uniform procedures for fiscal operations of the department. Clarifying 
language would be added to sec.sec.407.1-407.6, and sec.sec.407.22-407. 24. The 
proposed amendments in  s407.2 would add provisions concerning the disposal of a 
deceased client's trust fund when a demand is made. Section 407. 2(d) would be 
expanded to include two methods of earning interest and would allow for a non-
specific period for interest to be prorated. Section 407.3 would require all 
funds which are required to be deposited in the State Treasury be deposited 
within three days of receipt. For clarification, the titles of sec.sec.407.22-
407.24 would be changed from Patients Trust Fund to Trust Fund Procedures; 
Patient Benefit Fund to Benefit Fund Procedures; and Processing Vouchers and 
Warrants after Death of Payee to Processing Warrants and Vouchers after Death of 
Payee, respectively. 
 Leilani Rose, director, Financial Services, has determined that there will be 
no additional fiscal cost to state or local government as a result of 
administering the amendments as proposed. There will be no significant local 
economic impact. 
 Ms. Rose also has determined that the public benefit is the more uniform 
procedures for fiscal operations. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the amendments as proposed. 
 Comments on the proposed amendments may be submitted to Linda Logan, Director, 
Policy Development, Texas Department Mental Health and Mental Retardation, P.O. 
Box 12668, Austin, Texas 78711-2668, within 30 days of publication. 
 The amended sections are proposed under the Texas Health and Safety Code, Title 
7, sec.532.015, which provides the Texas Board of Mental Health and Mental 
Retardation with rulemaking powers. 
 
 
  sec.407.1. Purpose.<nl> This document has been established to provide written 
guidelines for fiscal operations. The intention is to impart enough information 
that an employee new to this system will be able to accomplish the tasks they 
need to perform. Although this manual is not all encompassing, it should provide 
either the answer to a question or be able to direct an individual to the proper 
source. These procedures are intended to be a meaningful guide in carrying out 
the fiscal responsibilities of the Texas Department of Mental Health and Mental 
Retardation. The procedures for accounting, budgeting, and wage and salary have 
been developed primarily to provide for uniform procedures of reporting 
financial data that is accurate, compatible, and comprehensive. Uniform 
procedures are necessary for effective fiscal control, increased operating 
efficiency through comparative analysis, support for appropriation requests, and 
accurate public information. Uniformity of business practices and of accounting, 
payroll, and budgeting procedures as applied to the departmental operations must 
be maintained. It is imperative that administrative personnel become familiar 
with the procedures outlined and comply with them in every respect. Any 
departure that seems necessary should be explained in writing to the Director, 
Financial Services, Central Office. In the event questions arise which are not 
addressed in this document, or cannot be resolved based on accepted business 
principles and practices, the Director of Financial Services or the Chief of 
Accounting Systems Management Section, should be consulted.<ol> [Standard 
operating procedures have been established primarily to cite the principles to 
be followed in certain areas of administrative concern. The topics in this 
subcategory may expand on topics referred to in other categories and may 
likewise be treated in more detail in other subcategories. Standard operating 
procedures are intended to be a flexible and meaningful guide in carrying out 
the responsibilities of the Texas Department of Mental Health and Mental 
Retardation. Each section should be recognized as a part of the whole and should 
be used in coordination with other sections, as well as with existing statutes 
and the current appropriation bill. It is intended to be an active guide, to be 
changed as often as necessary. Suggestions for changes or amendments are invited 
and will be given most careful consideration]. 
 
   
  sec.407.2. Trust Funds and Personal Effects. 
 
  (a) <nl>All funds received at the facility for the personal use of an 
individual client who has given consent for the facility to administer the 
client's personal trust funds will have their funds deposited to the client 
trust fund. <ol> [All funds received for the use or benefit of specific persons 
shall be considered as patient trust funds. All funds received are subject to 
any restriction imposed by donor or grantor.] These funds shall be deposited in 
national or state banks [in the immediate area] that are insured by the Federal 
Deposit Insurance Corporation[,] or in savings and loan associations domiciled 
in the State of Texas that are insured by the Federal Savings and Loan Insurance 
Corporation. 
   
  (b) <nl>At least<ol> [Not less than] 75% of the balance of the total amount 
held in trust at each facility shall be invested with insured Texas financial 
institutions [in time deposit certificates, savings accounts, or with the 
Central Office investment plan. The rate of return and the availability for 
withdrawal in case of emergency shall be considered in making the selections. As 
much of the remaining balance that is not required for current distribution 
should also be invested. Any exception to the minimum investment of 75% for a 
particular facility must be approved by the deputy commissioner for management 
and support]. <nl>Any remaining balance that is not required for current 
operations of the trust fund shall also be invested. 
   
  (c) <nl>Each client trust fund account is separately insured by the Federal 
Deposit Insurance Corporation or the Federal Savings and Loan Insurance 
Corporation provided that adequate trust fund records are maintained by the 
facility.<ol> [Subject to maintenance of adequate facility records of patient 
trust funds, each individual is separately insured by the Federal Deposit 
Insurance Corporation and the Federal Savings and Loan Insurance Corporation.] 
This makes it possible to maintain the trust fund balance in one demand deposit 
account, bank investment account,  <nl>and/<ol>or savings and loan account. 
   
  (d) Earnings from the investment of <nl>pooled <ol> trust funds are to be 
<nl>prorated<ol> [allocated] to individual client trust fund accounts in <nl>one 
of<ol> the following  <nl>ways<ol> [manner]: 
 
  (1) <nl>prorated to each client on an actual interest-earned basis; or<ol> 
[For each state fiscal quarter, the interest collected from the investment of 
client trust funds (including constructive receipt) will be allocated to clients 
on the basis of the average balance in the account of each client. The average 
balance will be determined by averaging the monthly balances for the three 
months of the quarter. The monthly balance should be that of the last day of the 
month. The allocation process should include all clients who had a balance on 
the last day of the quarter.] 
   
  (2)  <nl>prorated to each client on the basis of the average monthly balance 
for the period of proration. <ol> [As the interest for a quarter is collected, 
it should be accumulated in a special trust fund account to be distributed to 
the individual client trust fund accounts at the end of the quarter.] 
   
  [(3) Investment should be planned so that some interest will be collected each 
month or quarter and so that there will be an equitable allocation of interest 
to all clients and also an equitable allocation over several fiscal quarters.] 
     
  (e) <nl>When a client dies and there are funds remaining in the client's trust 
fund, such funds should be disposed of as follows: 
 
  <nl>(1) where no demand is made for disbursement of funds remaining in the 
deceased client's account, the facility should dispose of such funds in 
accordance with the Texas Health and Safety Code, sec.551.005. The facility 
shall hold such funds in the client's trust fund account for a period of three 
years. If at the end of three years, no demand has been made for disbursement of 
the funds, the facility shall turn such funds over to the State Treasurer. The 
State Treasurer shall hold the funds for a period of five years; and if, at the 
end of that five year period, no demand has been made, the funds shall escheat 
to the State and shall become a part of the General Fund; 
   
  <nl>(2) where demand is made, the facility may release the deceased client's 
funds in one of the following ways. 
 
  <nl>(A) The facility shall require the claimant to produce a copy of the small 
estates affidavit which has been filed in and approved by the probate court and 
certified by the clerk of said court in order to prove that the claimant has 
been authorized to collect the assets or a portion of the assets of the deceased 
client's estate. 
   
  <nl>(B) The facility shall release any remaining trust funds to such guardian. 
In order to prove that the person claiming the remaining trust funds is the 
guardian of the deceased client's estate, the facility shall require the 
claimant to provide letters of guardianship which indicate that the claimant is 
guardian of the deceased client's estate. 
   
  <nl>(C) The facility shall release any remaining trust funds to the 
representative appointed by the probate court to administer the estate. The 
facility shall require the representative to produce testamentary letters or 
letters of administration in order to prove that the representative has been 
authorized by the probate court to collect all assets of the deceased client's 
estate. 
   
  <nl>(D) If the probate court has determined that there is no necessity for 
administration of the deceased client's estate, the facility shall release any 
remaining trust funds to the distributees of the deceased client. The facility 
shall require a claimant to produce the court order refusing application for 
administration in order to prove that the claimant is collecting the remaining 
trust funds pursuant to the Texas Probate Code, sec.180. In the event the court 
order does not set forth the manner in which the assets of the deceased client's 
estate are to be distributed, the facility shall require the claimant to obtain 
a court order which shows that the claimant has been determined by the probate 
court to be a lawful heir of the deceased client's estate. 
   
  <nl>(E) When any questions arise concerning the proper distribution of assets 
remaining in a deceased client's trust fund, the facility is advised to seek 
legal counsel. 
   
  <nl>(F) In cases where the remaining funds are $100 or less and the facility 
feels reasonably sure that the person claiming the funds is the lawful heir and 
there would probably not be a future dispute over distribution of said funds, 
the facility may use its discretion as to whether to distribute the funds with 
the caveat that the release of such funds would be without any legal protection 
from potential liability by wrongfully distributing assets of the estate. 
     
  (3) Exceptions. Any funds deposited in a deceased client's trust fund pursuant 
to a specific trust arrangement or any funds which have been designated for a 
specific purpose by the facility prior to the death of the client shall be 
disposed of pursuant to the terms of that arrangement or pursuant to the purpose 
designated by the facility. Examples would include where funds are specifically 
set aside by a grantor for funeral expenses or where the facility has designated 
specific funds prior to the death of the client to be used to pay funeral 
expenses. 
   
  (4) In order to comply with the Texas Department of Human Services' rules 
concerning funds of deceased clients, the facility should, within 45 days after 
the death, forward a notarized affidavit outlining the disposition of the 
funds<ol> [Trust funds and any personal property held by the superintendent for 
a client who has died, has taken unauthorized departure, been discharged, or 
furloughed, will be disposed of as directed by Texas Civil Statutes article 
3l83c, sec.3]. 
 
       
  sec.407.3. Deposit and Investment of Funds. 
 
  (a) All funds received shall be deposited with the state treasurer or in a 
national or state bank which is a member of the Federal Deposit Insurance 
Corporation or in a savings and loan institution which is a member of the 
Federal Savings and Loan Insurance Corporation. The balance of any bank account 
must never exceed the FDIC/FSLIC-insured limit unless it is secured by a bank 
pledge of collateral under the provisions of Texas Civil Statutes, Article 342-
603. All funds which are required to be deposited in the State Treasury must be 
deposited within <nl>three<ol> [seven] days of receipt. 
   
  (b)-(f) (No change.) 
   
  (g) A register of all investments shall be maintained in the office of the 
business manager<nl>/assistant superintendent for administration <ol>. It shall 
include a description of each investment, the amount and date, interest due 
dates, interest paid dates, maturity date, and reinvestment information. The 
business manager<nl>/assistant superintendent for administration <ol> shall use 
this register to verify collection of income and principal and to plan the 
investment program. 
 
     
  sec.407.4. Benefit Funds: Use and Control. 
 
  (a) The Texas Health and Safety Code, sec.551.004, provides that the 
superintendent <nl>/director<ol> shall be the trustee of a special fund to be 
designated the benefit fund. <nl>The superintendent/director <ol> ["He] may 
expend the <nl>monies<ol> [moneys] in any such fund for the education or 
entertainment of the <nl>clients of the facility<ol> [inmates of the 
institution,] or for the actual expense of maintaining the fund at the 
institution.["] 
   
  (b)  The source of benefit funds are: 
 
  (1) private donations or gifts; 
   
  (2) interest earned from investment of benefit funds; 
   
  (3)  proceeds, rentals, or commissions received from vending machines; 
   
  (4)  proceeds, rentals, or commissions received from pay station telephones. 
     
  (c) Except for specific purpose funds, benefit funds may be used only for the 
purposes of education or entertainment of clients as a body. Each expenditure 
must be of general benefit to the population of the facility. This does not mean 
or imply that every client must benefit from each expenditure from the benefit 
fund. The guiding principle in the expenditure of these funds is that no 
partiality or preferential treatment is shown individuals or selected groups of 
clients. Expenditures from benefit funds must be properly documented to show the 
exact purpose and, if practical, to show the name of the clients benefiting from 
the expenditure. 
   
  (d) The following are examples of expenditures that meet the requirement 
pertaining to education or entertainment: 
 
  (1) purchase of supplies for a <nl>client <ol> merit/demerit system; 
   
  (2)-(6) (No change.) 
   
  (7) playground equipment, T.V. sets, record players, <nl>and<ol> stereos, for 
use by the clients as a whole <nl>in the living areas<ol> [on the wards or 
dormitories]; 
   
  (8) (No change.) 
     
  (e)-(f) (No change. ) 
   
  (g) The chaplain fund is a special purpose fund which may be provided for 
recording contributions at religious services and special gifts designated for 
such fund by the donor. The following lists indicate the approved source for 
purchase of chaplaincy equipment and supplies. While most of the items listed in 
paragraphs (2) and (3) of this subsection would be considered in the categories 
of "education or entertainment" under the procedure for handling benefit funds, 
the proper handling of a chaplain's fund must be based on the understanding by 
the donors that the funds will be used for the purposes which are listed. 
Expenditures from the fund should be limited to the items on the list which have 
been approved by the chaplains, the advisory committee, or the chaplain 
coordinator. 
 
  (1) [Necessary] <nl>Items<ol> [items] to be provided by the facility: 
 
  (A)-(L) (No change.) 
   
  (M) <nl>public address<ol> [PA] system; 
   
  (N) (No change.) 
   
  (O) counseling room <nl>for living areas<ol> [on each ward]; 
   
  (P)  (No change.) 
     
  (2) <nl>Items to be provided by facility if current appropriations are 
available <ol> [Very helpful items to be provided by facility funds, if 
available,] or through donations to Protestant or Catholic chaplain's fund. 
Items in paragraph (1) of this subsection are also included here if current 
appropriations are not available: 
 
  (A)-(B) (No change.) 
   
  (C) religious books for medical and <nl>client <ol> [patient] libraries; 
   
  (D)-(I) (No change.) 
   
  (J) pianos for <nl>living areas <ol> [dayrooms and dorms]; 
   
  (K)-(M)  (No change.) 
   
  (N) small hymnals for <nl>living areas <ol> [ward and dorm services]; 
   
  (O)-(P) (No change.) 
   
  (Q) communication system for religious broadcasts to <nl>clients<ol> 
[patients]; 
   
  (R)-(T) (No change.) 
     
  (3) Important items for chaplaincy ministry cannot be the responsibility of 
the facility and must come from <nl>the <ol> Protestant or Catholic chaplain's 
fund or other types of gifts (most of the following items become the property of 
clients<nl>): 
 
  (A) Bibles and New Testaments (Roman Catholic and Protestant <nl>-<ol>[) 
(]Spanish and English); 
   
  (B)-(U) (No change.) 
       
  (h) In accordance with approved procedures, all receipts should be deposited 
in a bank account and all expenditures should be made by check signed by the 
business manager<nl>/assistant superintendent for administration <ol> or 
administrator and countersigned by the superintendent [or ]<nl>/<ol>director 
<nl>or designees<ol>. Approved purchasing procedures applicable to other funds 
should be adhered to in every respect. 
   
  (i)  The actual expense of maintaining benefit funds may include expenditures 
to cover administrative errors which arise in the administration or disbursement 
of benefit funds and trust funds, provided the following restrictions are met: 
 
  (1)-(6) (No change.) 
   
  (7) employees responsible for administrative errors in the administration or 
disbursement of benefit funds and trust funds may be subject to disciplinary 
action <nl>as described in the department's Personnel Operation Instruction, 
406-3<ol> [under sec.3.112-4 (relating to Dismissal for Cause) of the Personnel 
Manual]. 
 
       
  sec.407.5. Mail Opening Procedures. 
 
  (a) Control of incoming monies. All mail addressed to the offices of cashier, 
claims, trust fund, canteen, business manager<nl>/assistant superintendent for 
administration<ol>, accounting, and sheltered workshop, except mail marked 
"personal" or "confidential," shall be opened centrally by two employees, one of 
<nl>whom<ol> [which] shall be <nl>the designated cashier<ol> [an employee of the 
cashier's office]. The purpose of the central mail opening procedure is to 
maintain control over incoming monies. Employees of these offices shall have the 
right to be present when mail addressed to them by name is opened. 
   
  (b) Mail addressed to the superintendent<nl>/director <ol>. All mail addressed 
to the superintendent<nl>/director <ol> which obviously contains monies, such as 
checks from the Social Security Administration, should be opened through the 
central mail opening procedure. All other mail addressed to the 
superintendent<nl>/director<ol> shall be delivered to his office unopened. 
   
  (c) Employee mail. Generally, all mail addressed to all other employees shall 
be delivered unopened to the individuals. <nl>Employees should not have personal 
mail addressed to facility unless living on grounds. 
   
  (d) Authority to open mail. The superintendent/director shall maintain 
authority to open any mail addressed to an employee, office or section of the 
facility (except personal mail to  <nl>employees<ol> [an employee] living on the 
grounds or <nl>their<ol> [his] family or mail marked "personal" or 
"confidential") when such action may be deemed in the best interest of the 
facility to maintain fiscal control over monies belonging to the facility <nl>, 
clients<ol> [or residents] or to control contraband. Mail addressed to an 
employee (except that indicated in subsection (a) of this section) shall be 
opened only in the presence of the employee. The indiscriminate opening of an 
employee's mail on a routine basis will not be condoned. 
   
  (e) (No change.) 
   
  (f) Client mail. 
 
  (1) All client mail shall be delivered unopened to the client, except as 
currently provided in <nl>departmental rules relating to mail opening 
procedures<ol> [Chapter 405, Subchapter M (relating to Mail Opening 
Procedures)]. 
   
  (2) Families of the <nl>resident<ol> clients [of the facilities] shall be 
informed that the facility is not responsible for funds mailed directly to the 
client. They should also be informed of the availability of the trust fund as a 
method of protecting personal funds for the client. Families should be advised 
to send all monies, either checks or cash, to the cashier <nl>and<ol>[,] not to 
<nl>department<ol> [individual departmental or ward] employees. 
 
       
  sec.407.6. Commercial Solicitation on Grounds. Commercial solicitation on the 
grounds of the state facility shall be only in accordance with the instruction 
and direction established by the superintendent<nl>/director<ol>. Such 
solicitation should be at times and places specifically authorized for that 
special area of concern. For instance, general salesmen should be directed to 
the purchasing and supply office. Drug salesmen should be given instructions as 
to what times and at what places they may meet with the formulary committee or 
the pharmacist. <nl>Employees are to be reminded<ol> [It is important, however, 
that salesmen should not be allowed to wander freely throughout the grounds or 
wards. In this regard it is important to remind employees of the facility] that 
they are prohibited by law from accepting gifts from salesmen or others. If such 
gifts are offered, they must either be rejected or handled as any other donated 
item to the facility. 
 
   
  sec.407.22.[Patients] Trust Fund <nl>Procedures. 
 
  (a)  Amounts received for benefit of clients specified by name are recorded in 
patients trust fund accounts. A subsidiary ledger <nl>account<ol> [sheet] is 
established for each client and any restriction imposed by the donor is recorded 
on that ledger <nl>account<ol> [sheet]. Each receipt or disbursement is posted 
to that ledger <nl>account<ol> [sheet]. Funds received for the general use of 
clients are considered as patient benefit funds. (See [Directive 2.7, also known 
as]  s407.23 of this title (relating to [Patient] Benefit Fund 
<nl>Procedures<ol>). 
 
  (1) (No change.) 
   
  (2)  Disbursements from patient trust funds are made for canteen merchandise 
coupons, cash <nl>withdrawals <ol> given to client and cash given to an employee 
to make an authorized purchase for a client or pay a client debt. The request 
for disbursement is approved by the subsidiary ledger clerk as to availability 
of funds and absence of donor restrictions; the cashier <nl>then<ol> makes the 
disbursement and secures supporting documentation. 
 
  (A) If cash is given to the client the client may sign beside an entry on 
<nl>the<ol> [a] list of disbursements. When authorized purchases are made for a 
client, sales slips, receipted bills, or other vouchers signed by the client 
<nl>(<ol>or two employees acting for the client<nl>)<ol> are secured, posted to 
the subsidiary ledger, and filed in support of the check voucher in the same 
manner as cash receipts are filed with the cash voucher. 
   
  (B)  A cash withdrawal request list or a canteen merchandise coupon request 
list may be prepared for several clients and the total disbursed by the cashier 
to an authorized employee.  <nl>This<ol> [Such] list shall provide space for the 
client's signature or mark. Two employees shall act as a team in making 
disbursements and shall sign a certification on the list, that the  
<nl>monies<ol> [moneys] or coupons listed were disbursed to the payees on the 
date shown. The disbursing team members shall be rotated frequently. If the 
superintendent<nl>/director<ol> desires that <nl>a<ol> [the] caseworker be a 
permanent member of the team, the second team member shall be rotated. 
     
  (3) Funds are deposited and invested in accordance with [Directive 1. 16, also 
known as] sec.407.2 of this title (relating to Trust Funds and Personal Effects) 
and [Directive 1.18, also known as] sec.407.3 of this title (relating to Deposit 
and Investment of Funds). Earnings from investment of funds are deposited to the 
<nl>each client's trust fund account<ol> [patient benefit fund]. 
   
  (4) Control accounts for patient trust funds are  <nl>1113xxx0<ol> [1195-XXX0-
00], Patient Trust Fund, and <nl>23110000<ol> [1381-0000-00], Patient<nl>s<ol> 
Trust Fund Payable. The balances of these accounts must equal the total of all 
subsidiary ledger accounts at <nl>the<ol> close of business each month. 
     
  (b) When a client leaves a facility, the balance in his <nl>/her<ol> trust 
fund is refunded. If <nl>the <ol> refund check is outstanding for four months, a 
request that the check be cashed shall be sent to the payee. If no reply is 
received after one additional month, a "stop-pay" order shall be issued and the 
amount restored to the trust fund account. [To avoid accumulating inactive 
account sheets throughout the ledger, the accountant may establish an "inactive" 
sheet in the back of the ledger, with a single line for each inactive account, 
showing client name and amount. Total inactive accounts must be included in 
balancing to control accounts.] 
   
  (c) The trust fund clerk reviews all inactive accounts at least once a year 
and furnishes the chief accountant  <nl>with<ol> a list of all applicable 
account balances for escheat to the state under provisions of current statutes. 
At this time, all balances subject to escheat to the state shall be processed as 
follows: 
 
  (1) identify all accounts held for former clients  <nl>are deceased<ol> [who 
have been dead], on unauthorized leave, discharged, or furloughed for <nl>a 
period<ol> longer than three years; 
   
  (2) mail a letter to the last known address of the client or to donor<nl>.<ol> 
[if last known address of the client is not available, advising] <nl>This letter 
should advise<ol> that the money will be escheated to the state treasurer if not 
claimed within 10 days; 
   
  (3)  <nl>at least 10 days before turning the funds over to the state treasure, 
post<ol> [Post] a list of clients' names and funds to be escheated in the hall 
of the administration building of the facility[, stating the pending action, at 
least 10 days before turning funds over to the state treasurer]. 
     
  (d)  Trust fund ledger entries shall include descriptions or codes indicating 
source of funds and purpose of disbursements. 
 
     
  sec.407.23. [Patient] Benefit Fund <nl>Procedures. <ol> Any donation of funds 
to clients not listed by name, plus funds earned from investment of [patient 
trust funds and funds earned from investment of the] benefit fund, is recorded 
in account <nl>45010000 <ol> [1102-XXXX-XX], Patient Benefit Fund 
<nl>Revenue<ol>. Revenues from vending machines and pay phones located on the 
facility are deposited to this fund when not required to maintain the authorized 
canteen revolving fund balance, except that if the canteen is operated through 
contract with the <nl>Texas Commission for the<ol> Blind [Commission], the 
operator of the canteen is entitled to the vending machine revenues. Reference  
<nl>the department's Fiscal Manual <ol>[sec.401.43 of this title (]relating to 
Vending Machines and Pay Telephones[)]. 
 
  (1) Funds are deposited and invested in accordance with [Directive 1.18, also 
known as] sec.407.3 of this title (relating to Deposit and Investment of Funds). 
   
  (2) Acceptable expenditures from these funds are described in [Directive 1.20, 
also known as] sec.407.4 of this title (relating to Benefit Funds: Use and 
Control). Except when specifically donated for other purposes, funds are only 
expended for education or entertainment of clients. All purchases are made under 
procedures approved by the State Purchasing and General Services Commission 
contained in <nl>the department's Purchasing and Supply Operating Instruction, 
407-2<ol> [Supply Manual]. All cash disbursement vouchers must be supported by 
paid receipts. 
   
  (3) (No change.) 
 
     
  sec.407.24. Processing  23>Warrants [Vouchers] and <nl>Vouchers [Warrants] 
after Death of Payee. 
 
  (a) In the event that a person who had provided goods or services to the state 
dies before having executed the purchase voucher for payment for those goods or 
services, another person may complete the form. The business 
manager<nl>/assistant superintendent for administration <ol> of <nl>the<ol> [a] 
facility, the spouse of the deceased, or other responsible party may complete a 
purchase voucher for goods or services furnished to the state, by adding a 
statement such as "prepared from records of the deceased." 
   
  (b) The business manager<nl>/assistant superintendent for administration <ol> 
must <nl>be satisfied <ol> [satisfy himself] that the claimant to a warrant 
drawn to <nl>the estate of the deceased<ol> [a deceased payee] is entitled to 
the warrant before releasing the warrant. 
   
  (c) A warrant payable to <nl>the estate of the deceased<ol> [a deceased payee] 
is payable by the state treasurer as follows. 
 
  (1) If endorsed by the administrator, a copy of the court certificate of 
appointment must be attached and accompany the warrant to the state treasurer's 
office. 
   
  (2) If endorsed by the payee's heirs, an affidavit shall be signed by two 
reputable persons stating that the endorsers are the sole surviving heirs, and 
are all of age and competent to act for themselves. This affidavit shall be 
attached and accompany the warrant to the state treasurer's office. 
   
  (3) If endorsed by the guardian of an heir, the warrant shall have a certified 
copy of the court certificate of guardianship attached when presented to the 
state treasurer's office for payment. 
   
  (4) One of the heirs may endorse the warrant, attaching a power of attorney or 
certified copy thereof, signed by all of the remaining heirs. The power of 
attorney shall state that the signers are the sole surviving heirs and are all 
of age and competent. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 3, 1993. 
 TRD-9319792 
  Ann Utley 
 Chairman 
 Texas Board of Mental Health and Mental Retardation 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 465-4670 
         
                     
  TITLE 31. NATURAL RESOURCES AND CONSERVATION 
 Part IX. Texas Water Commission 
  Chapter 334. Underground and Aboveground Storage Tanks 
  
  Subchapter H. Interim Reimbursement Program 
 
  31 TAC sec.sec.334.301, 334.302, 334.305, 334.308, 334.309, 334. 310, 334.315, 
334.317, 334.322 
 
  The Texas Water Commission (Commission) proposes amendments to sec.sec.334. 
301, 334.302, 334.305, 334.308, 334.309, 334.310, 334.315, 334.317, and 334. 
322, concerning interim reimbursement provisions of the Commission's Petroleum 
Storage Tank Program. 
 The proposed amendments to sec.334.301 would provide a severability clause 
which would have the effect of severing from the entire subchapter any invalid 
provisions. The proposed amendments to sec.334.302 would clarify existing 
language in the rule and reflect the commission's impending adoption of 
Reimbursable Cost Guidelines. The proposed amendments to sec.334.305 would 
correct a reference to the mailing address of the commission and clarify 
existing language. 
 The proposed amendments to sec.334.308 would change the title of the section to 
read "Allowable Costs and Restrictions on Allowable Costs;" would renumber and 
revise sec.334.308(d), (e), and (f) to make these subsections read more clearly; 
would eliminate sec.334.308 (g) and (h) since the language in subsections (g) 
and (h) is repeated in new subsections (d) and (e); would clarify existing 
language; would provide that subsection (c) is applicable unless otherwise 
specified in new sec.334.308(f) which contains restrictions on allowable costs; 
would update the term "free-product" to "phase-separated product" to reflect 
common industry usage; would provide that prior to March 12, 1993, costs 
associated with the removal of piping, pumps and dispensers associated with 
tanks would be allowable; and would provide that tank removals and permanent 
abandonment of tanks in place performed prior to March 12, 1993, would be 
allowable costs. The most significant change in sec.334.308 is that costs of 
tank removals and abandonment of tanks in place performed on or after March 12, 
1993, will not be reimbursable under the commission's reimbursement program. The 
Petroleum Storage Tank Remediation Fund (PSTR) was established to allow small 
business owners and operators to continue to operate in light of the United 
States Environmental Protection Agency's requirement that tank owners maintain 
financial assurance of $1,000,000 per release occurrence. If tank removals are 
included as allowable costs, the commission estimates that the demand on the 
PSTR fund would exceed $75 million per year (figure based on projected number of 
tank removals per year without regard to balance of fund at any point in time). 
When it reimbursed costs for tank removals, the commission went beyond what the 
legislature required since the PSTR Fund was established to reimburse owners and 
operators for costs of corrective action. In order to preserve the viability of 
the PSTR Fund, reimbursements must be limited to those costs which are actually 
necessary and related to corrective action. Tank removals are not direct costs 
of corrective action. 
 By eliminating tank removals, the commission will also be eliminating an 
existing disparity between tank owners who have a release and those who do not. 
Under the existing rules, only those tank owners who have release occurrences 
can apply to the commission for reimbursement for the tank removal costs. Tank 
owners who have not had releases are ineligible under the PSTR fund. 
 Additional amendments have been made to existing sec.334.308(e), (f), (g), and 
(h) which combine and revise the language in those provisions to create new 
subsections (d), (e), and (f) which relate to hydraulic fluid, spent oil, and 
restrictions on allowable costs, respectively. 
 The proposed amendments to sec.334.309 would reflect the commission's impending 
adoption of Reimbursable Cost Guidelines. The proposed amendments to 
sec.sec.334.310, 334.315, and 334.317 would clarify existing language in the 
rule. The proposed amendments to sec.334.322 would make the rule read more 
clearly and would add definitions for the terms abate, commingled substance, 
corrective action plan, emergency and tank removal. 
 Stephen Minick, Division of Budget and Planning, has determined that for the 
first five years this section is in effect there will be fiscal implications as 
a result of enforcement or administration of the section. The effects on state 
government will be cost savings in the Petroleum Storage Tank Remediation Fund. 
For the most part, this section will incorporate into rule those policies for 
determination of reasonable cost of storage tank remediation which are currently 
in place. The actual savings to be realized from adoption of reimbursement cost 
guidelines in general is dependent on the specific reimbursement requests made 
prospectively and cannot be determined with accuracy at this time. The most 
significant effect of this proposal, however, relates to the change in policy 
for reimbursement of the costs of removing contaminated tanks during the 
corrective action process. Approximately 5,300 tank removal projects are 
anticipated to be undertaken in 1993, of which approximately 3,300 (or 62%) will 
involve leaking tanks potentially eligible for reimbursement under existing 
policy. The average cost anticipated for an average site with three tanks is 
approximately $22,600. The total reduction in obligations against the fund 
associated with tank removals is approximately $74,580,000 annually for the 
estimated 3,300 tank sites. The cost to the owner/operator removing contaminated 
tanks from a typical site would be equivalent to the anticipated savings to the 
state of $22,600. The costs for sites with fewer or greater numbers of tanks 
would vary proportionally. 
 Cost savings realized will enable the commission to maximize the use of 
remediation funds for site cleanups and address the largest number of priority 
cases of contamination. No direct effects on local governments are anticipated 
other than those effects that occur due to ownership or operation of tanks. 
These effects would be the same as for any private tank owner/operator. Local 
governments will benefit generally from the commission's more efficient use of 
funds by having available the maximum amount of revenue from which to make 
requests for reimbursement. Any business requesting reimbursement for cleanup 
costs may realize some effects of the use of these cost guidelines, but, with 
the exception of tank removals, these are not anticipated to affect claims 
approvals significantly more than current practices. 
 Mr. Minick also has determined that for the first five years this section is in 
effect the public benefit anticipated as a result of enforcement of and 
compliance with the section will be more effective use of public funds for 
remediation of actual or potential threats to groundwater or surface water, 
enhanced protection of the public health and water quality and improved 
enforcement of the commission's authority regarding remediation of leaking 
petroleum storage tanks. Small businesses will be affected on the same basis and 
to the same extent as a larger concern. There are no additional costs 
anticipated to persons required to comply with this section as proposed. 
 Comments on the proposal may be submitted to Michael Bame, Petroleum Storage 
Tank Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711-3087. 
Comments will be accepted until 5 p.m. for a period of 30 days following the 
date of this publication. 
 Public meetings will be held to receive public comment. 
 The amendments are proposed under authority of House Bill 1588 (71st 
Legislature, 1989) and House Bill 1214 (72nd Legislature, 1991), which require 
the Commission to establish a groundwater protection program, and to implement a 
reimbursement program to responsible parties who cleanup sites on their own 
initiative and the Texas Water Code (Code), sec.5.103 and sec.5.105, which 
provides the Commission with the authority to adopt any rules necessary to carry 
out its powers and duties under the Code and other laws of the State of Texas, 
and to establish and approve all general policy of the Commission. 
 
 
  sec.334.301. Applicability of this Subchapter. 
 
  (a)-(g) (No change.) 
   
  <nl>(h) If any section, subsection, paragraph, subparagraph, clause, or 
subclause of this subchapter is held invalid, such invalidity shall not affect 
any other section, subsection, paragraph, subparagraph, clause, or subclause 
which can be given effect without the invalid provision, and to this end the 
provisions of this subchapter are declared to be severable. 
 
     
  sec.334.302. General Conditions and Limitations Regarding Reimbursement-
Interim Period. 
 
  (a)-(c) (No change.) 
   
  (d) No expenses for which reimbursement is claimed under this subchapter and 
no expenses which are to be applied to the owner/operator contribution shall be 
subject to reimbursement or applied to the owner/operator contribution unless 
the following conditions have been met. 
 
  (1)-(5) (No change.) 
   
  (6)  The allowable costs for which reimbursement is sought and those which are 
to be applied to the owner/operator contribution must be reimbursable 
[reasonable], as defined in sec.334.309 of this title (relating to 
<nl>Reimbursable<ol> [Reasonable] Costs-Interim Period). 
   
  (7) (No change.) 
     
  (e)-(g) (No change.) 
   
  (h) Nothing in <nl>this<ol> [these] subchapter shall be construed to create an 
entitlement to monies in the petroleum storage tank remediation fund or any 
other fund, and the commission reserves the right to amend or repeal <nl>without 
limitation<ol> any [and all] <nl>of the<ol> provisions of this subchapter, 
including [without limitation], provisions regarding eligibility and allowable 
costs. 
   
  (i)-(l) (No change.) 
 
     
  sec.334.305. Where and How Documents Must be Filed-Interim Period. 
 
  (a) Any application for reimbursement or claim for payment filed pursuant to 
this subchapter shall be filed as follows: 
 
  (1) the original application and one complete copy, plus any fees and 
registration information required pursuant to  s334.310(a) of this title 
(relating to Requirements for Eligibility-Interim Period) submitted to: Texas 
Water Commission, P.O. Box 13087, Austin, Texas 78711-3087, Attention: Petroleum 
Storage Tank  <nl>Division, Reimbursement Section <ol> [Claims]; 
   
  (2)  (No change.) 
     
  (b)-(c) (No change.) 
   
  (d) The date of filing documents with the chief clerk or the commission on 
protested claims for payment shall be controlled by <nl>this subchapter and the 
procedural rules of the commission<ol> [Chapters 261, 263, 265, 267, 269, and 
273 of this title (relating to Introductory Provisions; General Rules; 
Procedures Before Public Hearing; Procedures During Public Hearing; Procedures 
After Public Hearing Before a Hearings Examiner; Procedures After Public Hearing 
Before the Full Commission; and Procedures After Final Decision), to the extent 
applicable]. 
 
     
  sec.334.308. Allowable Costs <nl>and Restrictions on Allowable Costs-Interim 
Period. 
 
  (a)-(b) (No change.) 
   
  (c)  <nl>Unless otherwise specified in sec.334.308(f),<ol> allowable costs 
shall include, but not be limited to, the following: 
 
  (1) (No change.) 
   
  (2) removal of <nl>phase-separated<ol> [free] product; 
   
  (3)  (No change.) 
   
  (4) collection and analysis of surface and subsurface soil and water, 
<nl>phase-separated<ol> [free] product, and vapor samples; 
   
  (5) (No change.) 
   
  (6) removal, storage, treatment, recycling, transport, and disposal of 
<nl>phase-separated<ol> [free] product, sludges, vapors, contaminated soils, 
contaminated water and other wastes and contaminated articles, in accordance 
with applicable laws; 
   
  (7)-(9)  (No change.) 
   
  (10) design of plans for site assessment and remediation; 
   
  (11) acquisition, installation, startup, operation, and maintenance of [site 
assessment and] remediation systems, including monitoring; 
   
  <nl>(12) removal, transport, and disposal of the piping, pumps, and dispensers 
associated with the underground or aboveground tank when removed after October 
1, 1992 and before May 21, 1993; 
   
  <nl>(13)<ol>[(12)]   <nl>tank<ol> removal <nl>(as defined in this subchapter) 
and<ol>, transport, and disposal of the components of the underground or 
aboveground tank, excluding associated piping, pumps, and dispensers, in 
accordance with applicable law when connected with a corrective action measure 
<nl>and performed before May 21, 1993<ol>; 
   
  <nl>(14)<ol>[(13)] permanent abandonment in place of a tank system where 
abandonment in place rather than tank system removal is deemed by the executive 
director to be necessary to avoid destruction of substantial or significant 
surface improvements <nl>and conducted before May 21, 1993<ol>; 
   
  <nl>(15)<ol>[(14)] temporary relocation of utility structures when necessary 
to the performance of corrective action; 
   
  <nl>(16)<ol>[(15)] preparation of technical reports required pursuant to the 
requirements of Subchapter D of this chapter (relating to Reporting of Releases 
and Corrective Action); 
   
  <nl>(17)<ol>[(16)] the fair market value of access to property outside of the 
facility boundaries where such access is necessary for the performance of 
corrective action; 
   
  <nl>(18)<ol>[(17)] the reasonable value of necessary time spent by the 
applicant in planning and administering his own corrective action plan; 
   
  <nl>(19)<ol>[(18)] performance of any corrective action measure which is 
specifically required by an order of the Commission or a written request or 
confirmation of the executive director on or after September 1, 1987; 
   
  <nl>(20)<ol>[(19)] state and federal sales taxes applicable to items which are 
otherwise allowable costs under this section; and 
   
  <nl>(21)<ol>[(20)] any other costs determined by the executive director to be 
allowable in accordance with the provisions of this subchapter. 
     
  <nl>(d) The costs of abatement or corrective action taken in response to a 
release of hydraulic fluid from a hydraulic lift system are allowable costs in 
situations where: 
 
  <nl>(1) a release of hydraulic fluid occurs near the location of a release of 
petroleum products from a petroleum storage tank; 
   
  <nl>(2) the hydraulic fluid was released from a hydraulic lift system located 
at a vehicle service and fueling facility where the hydraulic lift system was 
used in conjunction with and contemporaneously with a vehicle service and 
fueling facility; and 
   
  <nl>(3) upon request by the executive director, the eligible owner or operator 
demonstrates that a release from the hydraulic lift system is not mixed with any 
substance except for petroleum products from a petroleum storage tank system or 
another substance that was contained in the hydraulic lift system owned or 
operated by the person claiming reimbursement. 
     
  <nl>(e) The costs of abatement or corrective action taken in response to a 
release of spent oil from a spent oil tank are allowable costs in situations 
where: 
 
  <nl>(1) a release of spent oil occurs near the location of a release of 
petroleum products from a petroleum storage tank; 
   
  <nl>(2) the spent oil was released from a spent oil tank located at a vehicle 
service and fueling facility where the spent oil tank was used in conjunction 
with and contemporaneously with a vehicle service and fueling facility; and 
   
  <nl>(3) upon request by the executive director, the eligible owner or operator 
demonstrates that a release of spent oil is not mixed with any substance except 
for petroleum products from a petroleum storage tank system or another substance 
that was contained in the spent oil tank owned or operated by the person 
claiming reimbursement. 
     
  [(e) The costs of abating the release from the petroleum storage tank and the 
costs of removal, transport and disposal of the petroleum storage tank, 
including (on or after October 1, 1992) associated piping, pumps and dispensers, 
are the only allowable costs in situations where: 
 
  [(1) a release of a petroleum product from a petroleum storage tank occurs 
near the location of a release of any other substance other than hydraulic oil 
from a hydraulic lift system or spent oil from a motor vehicle, located at a 
vehicle service and fueling facility; and 
   
  [(2) the contamination from the substance which is a petroleum product could 
not reasonably be remediated under a separate and distinct corrective action 
plan from the substance which is not a petroleum product. 
     
  [(f) The costs of abating the release from the hydraulic lift system and the 
costs of removal, transport and disposal of the tank, including (on or after 
October 1, 1992) associated piping and equipment, are the only allowable costs 
in situations where: 
 
  [(1) a release of hydraulic fluid occurs near the location of a release of any 
other substance other than: 
 
  [(A) petroleum products from a petroleum storage tank; 
   
  [(B)  spent oil from a tank located at a vehicle service and fueling facility; 
or 
   
  [(C) another substance which the claimant can prove was contained in the 
hydraulic lift system; and 
     
  [(2) the contamination from the substance which is a hydraulic fluid could not 
reasonably be remediated under a separate and distinct corrective action plan 
from the substance which is not a hydraulic fluid. 
     
  [(g) The costs of abating the release from the spent oil tank and the costs of 
removal, transport and disposal of the tank, including (on or after October 1, 
1992) associated piping and equipment, are the only allowable costs in 
situations where: 
 
  [(1) a release of spent oil occurs near the location of a release of any other 
substance other than: 
 
  [(A) petroleum products from a petroleum storage tank; 
   
  [(B)  hydraulic fluid from a hydraulic lift system; or 
   
  [(C) another substance which the claimant can prove was contained in the spent 
oil tank; and 
     
  [(2) the contamination from the substance which is a spent oil could not 
reasonably be remediated under a separate and distinct corrective action plan 
from the substance which is not a spent oil. 
     
  [(h) In addition to other requirements, no corrective action costs connected 
with the release of spent oil shall be allowable unless the spent oil was 
released from a tank located at a vehicle service and fueling facility, nor 
shall any costs connected with the release of hydraulic fluid be allowable 
unless the hydraulic fluid was released from a hydraulic lift system located at 
a vehicle service and fueling facility. The spent oil tank and/or hydraulic lift 
system must have been used in conjunction with and contemporaneously with a 
vehicle service and fueling facility.] 
   
  <nl>(f)<ol>[(d)] The following types of costs are those which will not be 
considered allowable costs under this subchapter: 
 
  (1)-(2) (No change.) 
   
  (3) removal, transport, and disposal of the piping, pumps, and dispensers 
associated with the underground or aboveground tank when removed prior to 
October 1, 1992, <nl>or on or after March 12, 1993; 
   
  <nl>(4)  tank removal (as defined in this subchapter) and, transport, and 
disposal of the components of the underground or aboveground tank, excluding 
associated piping, pumps, and dispensers, when performed on or after March 12, 
1993; 
   
  <nl>(5) permanent abandonment in place of a tank system where abandonment in 
place rather than tank system removal is deemed by the executive director to be 
necessary to avoid destruction of substantial or significant surface 
improvements when conducted on or after March 12, 1993; 
   
  <nl>(6)<ol>[(4)] loss of income or profits, including without limitation, the 
loss of business income arising out of the review, processing, or payment of an 
application or request for assistance under this subchapter; 
   
  <nl>(7)<ol>[(5)] decreased property values; 
   
  <nl>(8)<ol>[(6)]  bodily injury or property damage; 
   
  <nl>(9)<ol>[(7)] attorney's fees; 
   
  <nl>(10)<ol>[(8)] any costs associated with preparing, filing, and prosecuting 
an application for reimbursement or assistance under this subchapter; 
   
  <nl>(11)<ol>[(9)] the costs of making improvements to the facility beyond 
those that are required for corrective action; 
   
  <nl>(12)<ol>[(10)] costs associated with corrective action performed for any 
purpose where no release of petroleum above action levels is discovered, except 
when the corrective action has been ordered by the Commission; 
   
  <nl>(13)<ol>[(11)] costs of compiling and storing records relating to costs of 
corrective action; 
   
  <nl>(14)<ol>[(12)]  costs of corrective action taken in response to the 
release of a substance which is not a petroleum product as defined in 
sec.334.322 of this title (relating to Subchapter H Definitions); 
   
  <nl>(15)<ol>[(13)] costs of tank integrity testing when it is not specifically 
required by this chapter, requested by the executive director, or ordered by the 
Commission; 
   
  <nl>(16)<ol>[(14)] costs of any corrective action incurred by an owner or 
operator on or after the date that the executive director commences corrective 
action at the owner's or the operator's facility pursuant to sec.334. 321 of 
this title (relating to Corrective Action by the Commission-Interim Period), 
unless authorized in writing by the executive director; 
   
  <nl>(17)<ol>[(15)] costs incurred as a result of a release from a storage tank 
system owned, operated, or maintained by a common carrier railroad; 
   
  <nl>(18)<ol>[(16)] any activities, including those required by this chapter, 
which are not conducted in compliance with applicable state and federal 
environmental laws or laws relating to the transport and disposal of waste; 
[and] 
   
  <nl>(19)<ol>[(17)] interest on the monies expended for an item of corrective 
action<nl>; and<ol>[.] 
   
  <nl>(20) the cost of abatement or corrective action taken in response to a 
release of a commingled substance as that term is defined in sec.334.322 of this 
title (relating to Subchapter H Definitions), excluding subsections (d) and (e) 
of this subsection. 
 
       
  sec.334.309. <nl>Reimbursable  [Reasonable] Costs-Interim Period. 
 
  (a) For purposes of this subchapter, "<nl>Reimbursable <ol> [Reasonable] Cost" 
means that amount or range which is commensurate with the level of corrective 
action necessary to assess and remediate a site, as determined by the executive 
director, based on an evaluation of technical effectiveness and cost 
effectiveness as well as typical costs expected for the particular corrective 
action under review, with respect to the necessary or required scope and 
complexity of the action. 
   
  (b) No cost <nl>shall be reimbursed <ol> [is reasonable] unless it is also an 
allowable cost pursuant to sec.334.308 of this title (relating to Allowable 
Costs-Interim Period). 
 
     
  sec.334.310. Requirements for Eligibility-Interim Period. 
 
  (a)  In order for a person to be an eligible owner or operator under this 
subchapter the following requirements must be met. 
 
  (1) He/she must meet the other requirements of this chapter and must be: 
 
  (A)-(E) (No change.) 
   
  (F) an adjacent landowner who can clearly prove that the land has been 
contaminated by a release of petroleum products from a tank described in 
subparagraph (A) of this paragraph which is not located on said land, and who 
performed corrective action in response to a release of petroleum products from 
such tank, and either: 
 
  (i) (No change.) 
   
  (ii) committed to undertake the entire cleanup of the leak and contamination 
from the tank on his property and on all other property by: 
 
  (I) (No change.) 
   
  (II) performing a site assessment to define the extent of the vertical and 
horizontal contamination at the time of the agreement; 
   
  (III)-(IV) (No change.) 
         
  (2)-(4) (No change.) 
     
  (b)-(e) (No change.) 
   
  (f) Unless otherwise approved by the executive director, all <nl>corrective 
action<ol> [remedial] activities<nl>, including activities<ol> proposed in 
corrective action plans<nl>, <ol> must be approved in writing by the executive 
director prior to implementation [of the plan]. For reimbursement of emergency, 
initial abatement measures and phase- separated product recovery as required by 
sec.334.77 of this title (relating to Initial Abatement Measures and Site 
Check), approval by the executive director is not required prior to 
implementation, unless the emergency action extends beyond 48 hours, then 
written approval will be required for all activities with the exception of 
continuous phase-separated product recovery. 
 
     
  sec.334.315. Protest of Fund Payment Report-Interim Period. 
 
  (a) -(c) (No change.) 
   
  (d) The applicant and the staff of the executive director shall attempt to 
resolve any disputes over the fund payment report informally. If no resolution 
is reached by the staff and the applicant [within 45 days of the date on which 
the executive director receives a protest], the applicant may file a petition 
requesting the commission to grant relief. <nl>The petition shall be filed 
within 45 days of the last informal fund protest meeting. 
 
     
  sec.334.317. Hearing by the Commission-Interim Period.  Following receipt of a 
petition, the commission shall conduct a hearing on the petition. [To the extent 
applicable,]  <nl>T<ol>[t]he proceedings [before, during, and after the hearing] 
shall be governed by <nl>the rules of the commission<ol> [Chapters 261, 263, 
265, 267, 269, and 273 of this title (relating to Introductory Provisions; 
General Rules; Procedures Before Public Hearing; Procedures During Public 
Hearing; Procedures After Public Hearing Before a Hearings Examiner; Procedures 
After Public Hearing Before the Full Commission; and Procedures After Final 
Decision)]. 
 
   
  sec.334.322. Subchapter H Definitions. The following words and terms, when 
used in this subchapter, shall have the following meanings, unless the context 
clearly indicates otherwise. 
   
  <nl>   Abate-To reduce in sufficient degree or intensity the source of the 
release and potential fire, explosion, or vapor hazards such that immediate 
threats to human health no longer exist. This includes the removal of all 
regulated substances from the aboveground or underground tank, and the removal 
of phase-separated products. 
   
   Application preparer -[As used in this subchapter, means] <nl>A<ol>ny person 
responsible for preparing the application for reimbursement. 
   
  <nl>   Commingled substance -A combination or mixture of a petroleum product 
and a non-petroleum product. 
   
   Contract of subrogation-[As used in this subchapter, means] <nl>A <ol> 
document of agreement between the executive director and the eligible tank owner 
and operator which authorizes the executive director to recover costs reimbursed 
from persons who performed corrective action activities at LPST sites. 
   
  <nl>   Corrective action -The act or process of performing assessment or 
remedial activities taken in response to a release of a regulated substance. 
   
   Corrective action plan (remedial action plan) -[As used in this subchapter, 
means] <nl>A<ol> detailed plan developed to address site remediation of soil 
and/or groundwater contamination that provides for adequate protection of human 
health, safety, and the environment. The selection of the most effective and 
efficient remedial method will be dictated by the nature and location of the 
release, the site soils, hydrogeological conditions, and the required degree of 
remediation. The remedial method selection should take into consideration such 
factors as cost, time, and state compliance requirements with each method. The 
title of any report which contains a corrective action plan must include the 
designation "remedial action plan." 
   
   Eligible operator -[As used in this subchapter, means] <nl>A<ol>ny person in 
control of or having the responsibility for the daily operation of a petroleum 
storage tank who meets the eligibility requirements prescribed in sec.334.310 of 
this title (relating to Requirements for Eligibility-Interim Period). 
   
   Eligible owner -[As used in this subchapter, means] <nl>A<ol>ny person who 
meets the eligibility requirements prescribed in  s334.310 of this title 
(relating to Requirements for Eligibility -Interim Period) and who currently 
holds legal possession or ownership of a total or partial interest in a 
petroleum storage tank. For the purposes of this subchapter, where the actual 
ownership of the petroleum storage tank is either uncertain, unknown, or in 
dispute, the fee simple owner of the surface estate where the petroleum storage 
tank is located shall be considered the petroleum storage tank owner, unless it 
can be shown by appropriate documentation (deed reservation, invoice, bill of 
sale, etc.) or by other legally acceptable means that the petroleum storage tank 
is owned by another. "Owner" does not include a person who holds an interest in 
a petroleum storage tank solely for financial security purposes unless, through 
foreclosure or other related actions, the holder of such security interest has 
taken legal possession of the petroleum storage tank. For purposes of this 
subchapter, if it can be demonstrated that a petroleum storage tank has been 
"out of operation" as that term is defined in sec.334.2 of this title (relating 
to Definitions) for a period ten years, the tank shall be considered property of 
the owner of the surface estate. Legislature, Regular Session, Chapter 228, 
effective May 31, 1989. 
   
  <nl>   Emergency-Any existing or potential fire, explosion, or vapor hazards 
which pose an imminent threat to human health and safety, or any imminent threat 
at the point of actual use to drinking water supplies actually being used. 
   
   Initial abatement measures-[As used in this subchapter, means] <nl>T <ol>he 
mitigation of all existing or potential fire, explosion or vapor hazards 
including the removal of phase-separated product to provide adequate protection 
of human health, safety and the environment in emergency situations or other 
situations where emergency actions must be implemented to prevent further 
impacts to the environment. 
   
   Petroleum product -<nl>A product<ol> obtained from distilling and processing 
crude oil and that is capable of being used as a fuel for the propulsion of a 
motor vehicle or aircraft, including motor gasoline, gasohol, other alcohol 
blended fuels, aviation gasoline, kerosene, distillate fuel oil, and #1 and #2 
diesel. The term does not include naphtha-type jet fuel, kerosene-type jet fuel, 
or a petroleum product destined for use in chemical manufacturing or feedstock 
of that manufacturing. 
   
   Prime contractor -[As used in this subchapter, means] <nl>A<ol>ny natural 
person, firm, or any entity responsible for the contracting of any corrective 
action services. 
   
   Prime corrective action specialist-[As used in this subchapter, means] 
<nl>A<ol> natural person, consulting firm, or any entity engaging in corrective 
action services, or acting as coordinator of others engaged in corrective action 
services. 
   
  <nl>   Tank removal-The physical removal of an underground storage tank from 
the subsurface. Tank removals include removal and replacement of surface 
material, backfill excavation, tank removal and disposal, backfilling and 
compaction of excavation, and any other activities typically associated with the 
tank removal process. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 8, 1993. 
 TRD-9319928 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 463-8069 
         
           
  Subchapter M. Reimbursable Cost Guidelines for the Petroleum Storage Tanks 
Reimbursement Program 
 
  31 TAC sec.334.560 
 
  The Texas Water Commission (Commission) proposes new sec.334.560 concerning 
Reasonable Cost Guidelines for the Commission's Petroleum Storage Tank 
Reimbursement Program. 
 The new section is proposed under the Texas Water Code, Chapter 26, Subchapter 
I, as enacted by Senate Bill 779, 70th Legislature, 1987, and as amended by 
House Bill 1588, 71st Legislature, 1989, and House Bill 1214, 72nd Legislature, 
1991, which provides the Texas Water Commission with the authority to establish 
a program to regulate underground and aboveground storage tanks and to 
administer the petroleum storage tank remediation fund, and under the Texas 
Water Code, sec.5.103 and sec.5.105, which authorizes the Texas Water Commission 
to adopt any rules necessary to carry out its powers and duties under the Texas 
Water Code and other laws of the State of Texas, and to establish and approve 
any general policy of the commission. This new section is also proposed under 
the Texas Water Code, sec.26.3573(g), which mandates that the commission make 
the most efficient use possible of money in the petroleum storage tank 
remediation fund and to provide the most effective protection to the environment 
and public health and safety. Section 26.3573(h) provides that the commission 
may implement by rule necessary guidelines for determining amounts that may be 
paid from the petroleum storage tank remediation fund. 
 Proposed new sec.334.560 would adopt the Reimbursable Cost Guidelines to be 
used by the commission to evaluate the reimbursability of claims related to the 
cleanup of contamination from leaking petroleum storage tank sites. The 
Reimbursable Cost Guidelines have been developed to provide owners and operators 
with information regarding how their reimbursement application will be evaluated 
and what the reimbursable costs are for various cleanup activities. This 
document will provide for more consistency in the processing of reimbursement 
applications. The commission will use the guidelines to evaluate and process all 
claims for work performed on or after the effective date of this rule. 
 The guidelines are not intended to set pricing for certain activities or to 
remove an element of competition for the petroleum storage tank industry. 
Rather, the guidelines are intended to allow for a range of costs that will not 
be static, but which can be as dynamic as necessary to support and enhance 
competition. The guidelines cover such cost categories as labor rates, equipment 
and supplies, laboratory costs, remedial action plan preparation, soil and 
groundwater remediation, initial abatement and emergency measures, site 
assessments, site closures, and hauling, disposal, and treatment of waste. Costs 
associated with work performed on or after March 12, 1993, for abandonment of 
tanks in place are not allowable costs and therefore are not included in the 
reimbursable cost guidelines. Costs associated with tank removals, including 
piping, pumps, and dispensers performed on or after March 12, 1993, are not 
allowable costs and are not included in the reimbursable cost guidelines. Tank 
removals include removal and replacement of surface material, backfill 
excavation, tank removal and disposal, backfilling and compaction of excavation, 
and any other activities typically associated with the tank removal process. 
Upon approval by the executive director, the costs associated with tank removals 
can be applied towards the deductible if corrective action is required. This 
change is necessary to enable the commission to preserve the petroleum storage 
tank reimbursement fund for reimbursement of those activities directly 
associated with necessary corrective action. The commission estimates that the 
disallowance for reimbursement of the costs associated with tank removals will 
save the fund up to $75 million dollars in fiscal year 1993. Upon May 21, 1993, 
these Reimbursable Cost Guidelines will supersede and replace the December 1, 
1992, Reasonable Cost Guidelines distributed by the Commission. 
 Stephen Minick, Commission's Budget and Planning Division, has determined that 
for the first five years this section is in effect there will be fiscal 
implications as a result of enforcement or administration of the section. The 
effects on state government will be cost savings in the Petroleum Storage Tank 
Remediation Fund. For the most part, this section will incorporate into rule 
existing policies for determination of reimbursable costs. The cost savings 
relative to these policies is probably not material. Relative to existing 
regulation, however, the cost savings are anticipated to be more significant. 
The actual savings to be realized is dependent on the specific reimbursement 
requests made and cannot be determined with accuracy. Cost savings realized will 
enable the commission to maximize the use of remediation funds for site cleanups 
and address the largest number of priority cases of contamination. No direct 
effects on local governments are anticipated. Local governments will benefit 
generally from the commission's more efficient use of funds by having available 
the maximum amount of revenue from which to pay claims for reimbursement. Any 
business requesting reimbursement for cleanup costs may have some effects from 
the use of these cost guidelines, but these are not anticipated to affect claims 
approvals significantly more than current practices. 
 Mr. Minick also has determined that for the first five years these sections are 
in effect the public benefit anticipated as a result of enforcement of or 
compliance with the sections will be more effective use of public funds for 
remediation of actual or potential threats to groundwater or surface water, 
enhanced protection of public health and water quality and improved enforcement 
of the commission's authority regarding remediation of leaking petroleum storage 
tanks. Small businesses will be affected on the same basis and to the same 
extent as a larger concern. There are no additional costs anticipated to persons 
required to comply with this section as proposed. 
 Comments on the proposal may be submitted to Michael Bame, Petroleum Storage 
Tank Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711-3087. 
Comments will be accepted until 5 p.m. for a period of 30 days following the 
date of this publication. 
 Public meetings will be held to receive public comment. 
 The new section is proposed under the Texas Water Code,  s5.103 and sec.5. 105, 
which provide the Texas Water Commission with the authority to adopt any 
sections necessary to carry out its powers and duties under the Texas Water Code 
and other laws of the State of Texas, and to establish and approve all general 
policy of the commission. 
 
 
  sec.334.560. Reimbursable Cost Guidelines. The Texas Water Commission hereby 
adopts the Reimbursable Cost Guidelines <ol> for the Petroleum Storage Tank 
Reimbursement Program which are in effect as of May 21, 1993. Copies of this 
document are available upon request from the Texas Water Commission, Petroleum 
Storage Tank Division, P.O. Box 13087, Austin, Texas, 78711-3087. 
 
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
       
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 8, 1993. 
 TRD-9319930 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 463-8069 
         
             
  TITLE 34. PUBLIC FINANCE 
 Part II. Texas State Treasury 
  Chapter 11. Cigarette and Tobacco Products Tax 
  
  Subchapter B. Cigarette Tax 
 
  34 TAC sec.11.52 
 
  (Editor's Note: The Texas State Treasury proposes for permanent adoption the 
new sec.11.52 it adopts on an emergency basis in this issue. The text of the new 
sec.11.52 is in the Emergency Rules section of this issue.) 
   
  The Texas State Treasury proposes new sec.11.52, concerning the importation of 
200 or fewer cigarettes into the state by persons 18 years of age or older for 
personal use and not for sale. This section provides definitions of terms used 
in the section, defines factual situations to which the section applies, and 
provides for enforcement by Texas Alcoholic Beverage Commission employees at 
ports of entry. 
 John Bell, Deputy Treasurer, has determined that for the first five-year period 
the section is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section. 
 Mr. Bell also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to stop the importation of tax-free cigarettes by persons 
younger than 18 years of age at ports of entry; and to collect any additional 
taxes due where more than 200 are imported. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the section as proposed. 
 Comments on the proposal may be submitted to Alicia M. Fechtel, General 
Counsel, Texas State Treasury, P.O. Box 12608, Austin, Texas 78711, (512) 463-
5971, FAX (512) 463-6040. 
 The new section is proposed under the Texas Tax Code, sec.154.024(c) and 
sec.111.002, which provides the treasurer with the authority to adopt rules that 
do not conflict with the laws or the constitution of this state or the United 
States for the enforcement and collection of taxes and other revenue under Title 
2, Texas Tax Code. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 4, 1993. 
 TRD-9319839 
  Alicia M. Fechtel 
 General Counsel 
 Texas State Treasury 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 463-5971 
         
               
  TITLE 37. PUBLIC SAFETY AND CORRECTIONS 
 Part XIII. Texas Commission of Fire Protection 
  Chapter 421. Standards for Certification 
  
  37 TAC sec.421.1 
 
  The Texas Commission on Fire Protection proposes an amendment to sec.421.1 
(formerly sec.233.1), concerning minimum standards for basic structural fire 
protection personnel. The amendment changes the word "commission" to the "Fire 
Protection Personnel Advisory Committee." The amendment provides the method that 
the meetings may be called, the number of members on the committee, and the 
responsibility of the committee. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
 Mr. Bostick also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be clarification of procedures for meetings of the Fire Protection 
Personnel Advisory Committee. There will be no effect on small businesses. There 
is no anticipated economic cost to persons who are required to comply with the 
section as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendment is proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its power and duties; and the Texas Government Code, 
sec.419.023, which provides the commission with authority to establish a fire 
protection personnel advisory committee. 
 
 
  sec.421.1. Procedures for Meetings. 
 
  (a) Time and places. The <nl>Fire Protection Personnel Advisory Committee<ol> 
[commission] shall meet at such times and places in the State of Texas as it 
deems proper.  <nl>The Fire Protection Personnel Advisory Committee shall meet 
at least twice each calendar year. 
   
  (b) Meeting called. <nl>Meetings shall be called by the chairman, by the 
commission or upon the written request of five members<ol> [Meetings shall be 
called by the chairman upon his own motion, or upon the written request of five 
members]. 
   
  (c) (No change.) 
   
  <nl>(d) Members. The Fire Protection Personnel Advisory Committee shall 
consist of nine members appointed by the commission. Committee members serve at 
the will of the commission. 
   
  <nl>(e)<ol>[(d)] Officers. Officers of the <nl>Fire Protection Personnel 
Advisory Committee<ol> [commission] shall consist of a chairman, vice-chairman, 
and secretary. The <nl>committee <ol> [commission] shall elect its officers from 
the appointed members at its first meeting and thereafter at its first meeting 
<nl>following January 1, of each year or upon the vacancy of an office, <ol> 
[succeeding new appointments to fill regular terms.] 
   
  <nl>(f) Responsibility. The Fire Protection Advisory Committee shall review 
commission rules relating to fire protection personnel and fire departments and 
recommend changes in the rules to the commission. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319946 
  Jack Woods 
 General Counsel 
 Texas Commission of Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
             Chapter 423. Fire Suppression 
  
  Subchapter A. Minimum Standards for Structure Fire Protection Personnel 
Certification 
 
  37 TAC sec.423.1 
 
  The Texas Commission on Fire Protection proposes an amendment to sec.423.1 
(formerly sec.233.9), concerning minimum standards for basic structural fire 
protection personnel. The amendment adds the completion of the approved Basic 
Volunteer Fire Fighter Curriculum as specified in Chapter 1, of the commission's 
document titled "Commission Volunteer Certification Curriculum Manual" as an 
option for being certified as structure fire protection personnel. The amendment 
also provides criteria for approval of basic fire suppression programs from 
other jurisdictions, including out-of-state and military programs, to determine 
equivalency. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
 Mr. Bostick also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be a clearer understanding of the requirements for certification as 
structure fire protection personnel. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the section as proposed; however, out-of-state and military 
personnel may be required to furnish more detailed documentation than current 
rules require. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendment is proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its power and duties; Texas Government Code, 
sec.419.022(a)(5), which provides the commission with authority to establish 
minimum standards for admission to employment as fire protection personnel; 
Texas Government Code, sec.419.032(d), which provides the commission with 
authority to certify persons that are qualified as fire protection personnel; 
and Texas Government Code, sec.419.075, which provides the commission with 
authority to certify volunteers under Subchapter B. 
 
 
  sec.423.1. Minimum Standards for Basic Structural Fire Protection Personnel. 
 
  (a) (No change.) 
   
  (b) All full-time, full-paid employees of any local government entity, who are 
assigned structure fire protection duties must be certified by the commission. 
In order to be certified, structure fire protection personnel must: 
 
  (1) complete a commission-approved basic structure fire suppression program 
and successfully pass the commission examination <nl>as specified in Chapter 
439, of this title, pertaining to Examinations for Certification <ol> prior to 
being assigned to fire suppression duties. An approved basic structure fire 
suppression program shall consist of one of the following: 
 
  (A) completion of the commission-approved Basic Fire Suppression Curriculum as 
specified in Chapter 1, of the commission's document titled "Commission 
Certification Curriculum Manual", as adopted by reference in sec.443.1 of this 
title (relating to Basic Fire Suppression Curriculum) [and successfully pass the 
commission examination as specified in Chapter 439, of this title, pertaining to 
Examinations for Certification, within one year prior to the date of assignment 
to fire suppression]; or 
   
  <nl>(B) completion of the commission-approved Basic Volunteer Fire Fighter 
Curriculum as specified in Chapter 1, of the commission's document titled 
"Commission Volunteer Certification Curriculum Manual", as adopted by reference 
in sec.473.3 of this title (relating to Basic Volunteer Fire Fighter Curriculum) 
and successfully pass the commission examinations as specified in Chapter 479 of 
this title (relating to Examinations for Volunteer Fire Fighter Certification). 
   
  <nl>(C)<ol>[(B)] completion of an out-of-state training program deemed 
equivalent to the commission-approved Basic Fire Suppression Curriculum[,] 
<nl>and <ol> documentation of one years' experience as a full-time/full-paid 
fire fighter [and successfully pass the commission examination as specified in 
sec.439.17(b) of this title (relating to Testing for Proof of Proficiency)]; or 
   
  <nl>(D)<ol>[(C)] completion of a military training program deemed equivalent 
to a commission-approved basic fire suppression curriculum[,] <nl>and <ol> 
documentation of one years' experience as a full-time/full-paid fire fighter 
[and successfully pass the commission examination as specified in sec.439.17(b) 
of this title;]<nl>. 
     
  (2)-(3) (No change.) 
     
  (c) <nl>A basic fire suppression program from another jurisdiction may be 
submitted to the commission for approval as required in the Texas Government 
Code, sec.419.032(d), Appointment of Fire Protection Personnel. These programs 
include out-of-state and military programs and shall be deemed equivalent by the 
commission if the subjects taught, subject content, hours of training in a 
subject, and total hours of training meet or exceed those contained in Chapter 1 
of the commission's document titled "Commission Curriculum Certification 
Manual", as adopted by reference in sec.443.1 of this title (relating to Basic 
Fire Suppression Curriculum).<ol> [All questions of training equivalency will be 
decided by the commission.] 
   
  (d)-(e) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319947 
  Jack Woods 
 General Counsel 
 Texas Commission of Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
               Chapter 425. Fire Protection Instructor 
  
  Subchapter A. Instructor Certification 
 
  37 TAC sec.425.5, sec.425.7 
 
  The Texas Commission on Fire Protection proposes amendments to sec.425.5 
(formerly sec.233.85) and sec.425.7 (sec.233.87), concerning fire protection 
instructors including advanced and master level instructor certifications. The 
amendment to sec.425.5 deletes the language requiring an advanced instructor to 
be working full time as an instructor or training officer. The amendment to 
sec.425.7 changes the prerequisites required to obtain a master fire protection 
instructor certification to require master certification in another discipline. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections. 
 Mr. Bostick also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be to allow more fire fighters to obtain advanced 
levels of certification without being full-time instructors. The change to the 
requirements for a master instructor certificate will also encourage persons 
holding master certificates in other disciplines to become instructors. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the sections as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendments are proposed under Texas Government Code,  s419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its powers and duties; and Texas Government Code, 
sec.419.028(b)(3), which provides the commission the authority to certify 
persons as qualified fire protection personnel instructors under conditions the 
commission prescribes. 
 
 
  sec.425.5. Minimum Standards for Advanced Fire Protection Instructor 
Certification (Equivalent to NFPA 1041, Instructor III Level). In order to be 
certified as an Advanced Instructor the individual must: 
 
  (1) (No change.) 
   
  (2) be a member of a fire department, as defined in  s421.5 of this title 
(relating to Definitions), and have as a minimum five years of experience[, 
devoting full time to fire training and related responsibilities]; 
   
  [(3) be a full-time instructor or training officer;] 
   
  <nl>(3)<ol>[(4)] provide documentation that they are knowledgeable in the 
subjects that they will teach and successfully complete the following 
commission-approved instructor training courses: 
 
  (A) a commission-approved Instructional Aids course consisting of at least 30 
class hours or three college semester hours or the National Fire Academy course, 
Instructional Methodology, can be substituted for Methods of Teaching and 
Instructional Aids; and 
   
  (B) a commission-approved course in Analysis and Course Making consisting of 
at least 30 class hours or three college semester hours; and 
   
  (C) a commission-approved course in Organization and Use of Instructional 
Materials consisting of at least 30 class hours or three college semester hours. 
(The National Fire Academy course Course Development can be substituted for 
Analysis and Course Making and Organization and Use of Instructional Material.) 
 
       
  sec.425.7. Minimum Standards for Master Fire Protection Instructor 
Certification (Equivalent to NFPA Standard 1041, Instructor IV Level).  <ol> In 
order to be certified as a Master Instructor the individual must: 
 
  (1) (No change.) 
   
  (2) <nl>hold as a prerequisite a Master Structural Fire Protection Personnel 
Certification, a Master Aircraft Crash and Rescue Fire Protection Personnel 
Certification, a Master Inspector Certification, or a Master Fire and Arson 
Investigator Certification<ol> [possess an associate degree or 60 semester hours 
in fire science or any other college program which includes at least 15 semester 
hours of leadership-type programs, such as: effective speaking, human relations, 
effective communication management, fire administration, parliamentary 
procedure, and other equally related subjects; and]; 
   
  [(3) be a full-time instructor or training officer.] (Instructors who want to 
meet NFPA Standard 1041 for Instructor IV level must first meet all requirements 
for NFPA 1041, Instructor III level.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319948 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
               Chapter 429. Minimum Standards for Fire Inspectors 
  
  37 TAC sec.sec.429.1, 429.3, 429.5, 429.7, 429.9, 429.11, 429.13, 429.15, 
429.17 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Commission on Fire Protection or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Commission on Fire Protection proposes the repeal of sec.sec.429.1 
(formerly 233.93), 429.3 (233.95), 429.5 (233.97), 429.7 (233.99), 429.9 (233. 
101), 429.11 (233.103), 429.13 (233.105), 429.15 (233.107), and 429.17 (233. 
109), concerning minimum standards for fire inspectors. The repealed sections 
will be replaced with new sections concerning the same subject matter with an 
effective date of January 1, 1994. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the repeals are in effect there will be no fiscal 
implications for state government as a result of enforcing or administering the 
repeals. The fiscal implications for local government resulting from the new 
sections which replace the repealed sections are described in the preamble for 
those new sections published in the same issue of the Texas Register. 
 Mr. Bostick also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be elimination of obsolete language and increased competency of 
persons assigned fire inspection duties, especially in smaller cities. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the repeals as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The repeals are proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its powers and duties; and the Texas Government Code, 
sec.419.022(a)(5) which provides the commission with authority to establish 
minimum standards for admission to employment as fire protection personnel and 
for advanced or specialized fire protection personnel positions. 
 
 
  sec.429.1. Minimum Standards for Fire Prevention Personnel. 
 
   
  sec.429.3. Inspector Certification Level Based on Population. 
 
   
  sec.429.5. Minimum Standards for "C" Inspector Certification. 
 
   
  sec.429.7. Minimum Standards for "B" Inspector Certification. 
 
   
  sec.429.9. Minimum Standard for "A" Inspector Certification. 
 
   
  sec.429.11. Minimum Standards for Intermediate Inspector Certification. 
 
   
  sec.429.13. Minimum Standards for Advanced Inspector Certification. 
 
   
  sec.429.15. Minimum Standards for Master Inspector Certification. 
 
   
  sec.429.17. Minimum Standards for Fire Fighter/Fire Inspector Limited 
Certification. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319950 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
         
  37 TAC sec.sec.429.1, 429.3, 429.5, 429.7, 429.9, 429.11 
 
  The Texas Commission on Fire Protection proposes new sec. s429.1, 429.3, 
429.5, 429.7, 429.9, and 429.11, concerning minimum standards for fire 
inspection personnel. The new sections replace repealed sections pertaining to 
the same subject matter and have a proposed effective date of January 1, 1994. 
New  s429.1 requires fire inspector certification of all full-time, fully paid 
local government employees who are assigned fire code enforcement duties. New 
sec.429.3 concerning standards for Basic Fire Inspector Certification replaces 
current language where the number of training hours depends on city population 
with a single basic curriculum requirement consisting of either a 226-hour 
course or possession of an associate degree, including 21 semester hours in 
specified fire protection and prevention courses. The new sections pertaining to 
intermediate, advanced and master certification provide requirements consistent 
with higher levels of structure certification. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the sections are in effect there will be no 
fiscal implications for state government as a result of enforcing or 
administering the sections except state agencies that employ fire inspection 
personnel. There will be fiscal implications for local government for training 
of new fire prevention personnel depending on population of 70,000 or less, 
training requirements are increased from 140 class hours to 226 class hours. In 
cities with populations of 70,001 to 250,000, training is increased from hours 
to 226. Finally, in cities with population greater than 25 4>0,000, the training 
requirement is increased from 200 hours to 226. The increased number of training 
hours is mitigated by providing for credit in subjects of the basic fire 
inspector curriculum totalling 52 hours for individuals with basic structure 
fire protection personnel certification, as these same subjects are included in 
the Basic Fire Suppression Curriculum. Therefore, in cities which assign persons 
previously certified in structure fire protection, there will be a net reduction 
of training hours in cities with population over 250,000; only four additional 
hours for cities with population of 70,001 to 250,000; and only a net 34-hour 
increase for cities with population of 70,000 or less. Based on the number and 
distribution of current inspector certifications, the increase in training hours 
will adversely affect only 15% of new inspectors. The exact cost of 
approximately one additional week of training will vary depending on the source 
of training and the compensation of the inspector trainee. Mr. Bostick also has 
determined that there will be no impact on local employment as a result of 
enforcing and administering the new sections. 
 Mr. Bostick also has determined that for the first five years the sections are 
in effect the public benefit anticipated as a result of enforcing the sections 
will be increased competency of persons assigned fire inspection duties 
particularly in smaller cities which often face the same hazards as larger 
cities, as well as more effective for fire prevention services for the public. 
In addition, the elimination of the one-year experience requirement permits fire 
inspectors to be recognized as expert witnesses upon completion of training. 
There will be no effect on small businesses. The cost to persons will be nominal 
because most departments provide training for their fire inspectors, although 
additional time may be required of some individuals. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The new sections are proposed under the Texas Government Code, sec.419.008, 
which provides the Texas Commission on Fire Protection with authority to adopt 
rules for the administration of its powers and duties; and the Texas Government 
Code, sec.419.022(a)(5), which provides the commission with authority to 
establish minimum standards for admission to employment as fire protection 
personnel and for advanced or specialized fire protection personnel positions. 
 
 
  sec.429.1. Minimum Standards for Fire Inspection Personnel. 
 
  (a) The effective date of this chapter shall be January 1, 1994. All full-
time, full-paid personnel, as employed by a government entity who are assigned 
fire code enforcement activities, must be certified by the Commission as fire 
inspectors. 
   
  (b) Fire prevention inspection personnel must complete all requirements for 
certification and be certified within one year of initial appointment to such 
position. 
   
  (c) All full-time, full-paid employees of a governmental entity who are 
assigned fire code enforcement duties, must be certified, as a minimum, as 
either: 
 
  (1) a Basic Fire Inspector as specified in sec.429.3 of this title (relating 
to Minimum Standards for Basic Fire Inspector Certification); or 
   
  (2) a Fire Fighter/Fire Inspector Limited as specified in sec.429.11 of this 
title (relating to Minimum Standards for Fire Fighter/Fire Inspector Limited 
Certification). 
     
  (d) Individuals who currently hold an "A", "B", or "C" Inspector certification 
on the effective date of this section, will upon renewal or reissue, be issued a 
Basic Fire Inspector Certification. 
   
  (e) All individuals holding any level of fire inspector certification shall be 
required to comply with the continuing education requirements in sec.441.13 of 
this title (relating to Continuing Education Requirements for Fire Inspection 
Personnel). 
   
  (f) Code enforcement is defined as the enforcement of laws, codes, and 
ordinances of the authority having jurisdiction pertaining to fire prevention. 
 
     
  sec.429.3. Minimum Standards for Basic Fire Inspector Certification. 
 
  (a) The effective date of this section shall be January 1, 1994. Training 
programs that are intended to satisfy the requirements of this section, that are 
started after the effective date of this section, must meet the curriculum, 
competencies, hours, and examination requirements of this section. 
   
  (b) In order to be certified by the commission as a Basic Fire Inspector an 
individual must: 
 
  (1) complete a commission-approved fire inspection program and successfully 
pass the commission examination as specified in Chapter 439 of this title 
(relating to Examinations for Certification) within one year from the date of 
initial appointment to the position. An approved basic fire inspection program 
shall consist of one of the following: 
 
  (A) completion of the commission approved Basic Fire Inspector Curriculum as 
specified in Chapter 4, of the commission's document titled "Commission 
Certification Curriculum Manual", as adopted by reference in sec.443.7 of this 
title (relating to Basic Fire Inspector Curriculum); or 
   
  (B) successful completion of an out-of-state training program which has been 
submitted to the commission for evaluation and found to meet the minimum 
requirements as listed in the Basic Fire Inspector Curriculum as specified in 
Chapter 4, of the commission's document titled "Commission Certification 
Curriculum Manual" as adopted by reference in sec.443.7 of this title; or 
   
  (C) possession, as a minimum of an Association Degree from an accredited 
college or university and successful completion of the following college 
courses: 
           
  Fundamentals of Fire Protection-three semester hours; 
 Fire Protection Systems-three semester hours; 
 Fire Prevention -three semester hours; 
 Building Code -three semester hours; 
 Building Construction -three semester hours; 
 Hazardous Materials I-three semester hours; 
 Fundamentals of Speech-three semester hours; 
 Total Semester Hours-21. 
 Note: Building Code and Building Construction may be combined into a single 
three semester hour class. If this is the case, the total semester hours may be 
reduced to 18. 
 
 
  sec.429.5. Minimum Standards for Intermediate Fire Inspector Certification. 
 
  (a) Applicants for Intermediate Fire Inspector Certification must complete the 
following requirements: 
 
  (1) hold as a prerequisite, basic fire inspector certification, as defined in 
sec.429.3 of this title (relating Minimum Standards for Basic Fire Inspector 
certification); 
   
  (2) must be a full-time, full-paid fire inspector; 
   
  (3) must acquire one of the following combinations of college education or 
training points and the listed years of fire protection experience, which may 
include the training points and the years of experience used to qualify for 
Basic Inspector certification: 
 
  (A) 20 training points and at least eight years of service; or 
   
  (B) 20 training points which includes at least 15 college semester hours in 
fire science subjects and at least seven years of service; or 
   
  (C) 40 training points and at least six years of service; or 
   
  (D) 40 training points which includes at least 15 college semester hours in 
fire science subjects and at least five years of service; or 
   
  (E) an associate degree or 60 training points and at least four years of 
service; or 
   
  (F) an associate degree or 60 training points, either of which includes at 
least 15 college semester hours in fire science subjects and at least three 
years of service; or 
   
  (G) a baccalaureate degree or an associate degree in fire science or 120 
training points and at least two years of service. 
     
  (4) As part of the training specified in paragraph (3) of this subsection, 
complete the courses listed in one of the following options: 
 
  (A) Option #1: 
 
  (i) Fire Administration I (college level) or Plan Review (college level); and 
   
  (ii) Fire Safety Education (college level). 
     
  (B) Option #2: 
 
  (i) Fire Service Supervision -Increasing Personal Effectiveness (12 hours); 
   
  (ii) Fire Service Supervision -Increasing Team Effectiveness (12 hours); 
   
  (iii) Public Fire Education (12 hours); and 
   
  (iv) Fire/Arson Detection (12 hours). 
         
  (b) College level courses from both the upper and lower division may be used 
to satisfy the educational requirement for Intermediate Inspector Certification. 
 
     
  sec.429.7. Minimum Standards for Advanced Inspector Certification. 
 
  (a) Applications for Advanced Inspector certification must complete the 
following requirements: 
 
  (1) hold as a prerequisite an Intermediate Inspector certificate. 
   
  (2) acquire one of the following combination of college education or training 
points, and the listed years of fire protection experience, which may include 
the training points and years of experience that were used to qualify for all 
lower levels of inspector certification: 
 
  (A) 40 training points and at least 12 years of service; or 
   
  (B) 40 training points which includes at least 15 college semester hours in 
fire science subjects and at least 10 years of service; or 
   
  (C) an associate degree or 60 training points and at least nine years of 
service; or 
   
  (D) an associate degree or 60 training points, either of which includes at 
least 15 college semester hours in fire science subjects and at least six years 
of service; or 
   
  (E) a baccalaureate degree or an associate degree in fire science or 120 
training points and at least four years of service; or 
   
  (F) a baccalaureate degree or 120 training points either of which includes at 
least 15 college semester hours in fire science subjects and at least three 
years of service. 
     
  (3) As part of the training specified in paragraph (2) of this subsection, 
complete the courses listed in one of the following options: 
 
  (A) Option #1: 
 
  (i) Legal Aspects of Fire Protection (college level); and 
   
  (ii) Industrial Fire Protection or Urban Fire Problem Analysis (college 
level). 
     
  (B) Option #2: 
 
  (i) Hazardous Materials and Pesticide Recognition (12 hours); 
   
  (ii) Hazardous Material Incident Analysis (12 hours); and 
   
  (iii) Building Construction for Fire Suppression Forces: Principles, Wood and 
Ordinary Construction (12 hours); 
   
  (iv) Building Construction for Fire Suppression Forces: Principles, Non-
Combustible and Fire-Resistive Construction (12 hours). 
         
  (b) College level courses from both the upper and lower division may be used 
to satisfy the educational requirement for Advanced Inspector Certification. 
 
     
  sec.429.9. Minimum Standards for Master Inspector Certification. 
 
  (a) Applicants for Master Inspector Certification must complete the following 
requirements: 
 
  (1) hold as a prerequisite an Advanced Inspector certificate; and 
   
  (2) must be a full-time, full-paid fire inspector; and 
   
  (3) must acquire one of the following combinations of college education and 
the listed years of fire protection experience, which may include the college 
hours and years of experience used to qualify for all lower levels of inspector 
certification: 
 
  (A) an associate degree or 60 college semester hours and at least 12 years of 
service; or 
   
  (B) an associate degree or 60 college semester hours in fire science subjects 
and at least nine years of service; or 
   
  (C) an associate degree in fire science and at least six years of service; or 
   
  (D) a baccalaureate degree or 120 college semester hours and six years of 
service; or 
   
  (E) a baccalaureate degree or 120 college semester hours, either of which must 
include at least 15 college semester hours in fire science subjects and at least 
four years of service; or 
   
  (F) a master's degree and at least four years of service. 
       
  (b) College level courses from both the upper and lower division may be used 
to satisfy the requirement for Master Inspector Certification. 
 
     
  sec.429.11. Minimum Standards for Fire Fighter/Fire Inspector Limited 
Certification. 
 
  (a) The purpose of this section is to set forth the requirements and rules 
governing the issuance of certificate for Fire Fighter/Fire Inspector Limited 
Certification. The commission has ruled that an individual cannot be 
simultaneously assigned as a full-time fire fighter and a full-time inspector 
with the same employing entity. An entity may assign a full-time fire fighter, 
limited inspection duties, under the direct or indirect supervision of a full-
time inspector. An example of direct supervision would be a scenario where the 
limited inspector would have as an immediate supervisor, a full-time inspector, 
during the time he was assigned to inspection duties. An example of indirect 
supervision would be a scenario where the limited inspector's immediate 
supervisor is a fire suppression officer, however the employing entity must have 
a full-time inspector who is ultimately responsible for the inspection activity 
of the entity and available for supervision of the limited inspector as 
necessary to enable the limited inspector to carry out the assigned duties. 
   
  (b) Applicants for Fire Fighter/Fire Inspector Limited certification must 
complete the following requirements. 
 
  (1) The applicant must possess at least Basic Structure Fire Protection 
Personnel Certification as set forth in sec.423.1, of this title (relating to 
Minimum Standards for Basic Structure Fire Protection Personnel Certification). 
   
  (2) The applicant must complete a commission-approved fire inspection 
curriculum as specified in sec.429.3(b) of this title (relating to Minimum 
Standards for Basic Fire Inspector Certification), within one year from the date 
of initial appointment to the position. 
   
  (3) The individual must pass a commission examination as specified in Chapter 
439 of this title (relating to Examinations for Certification). 
     
  (c) Individuals who hold Fire Fighter/Fire Inspector Limited certification are 
not eligible to apply for Intermediate, Advanced, or Master Fire Inspector 
certification. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319949 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
             Chapter 431. Minimum Standards for Fire and Arson Investigator 
  
  37 TAC sec.sec.431.1, 431.3, 431.5, 431.7, 431.9, 431.11 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Commission on Fire Protection or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Commission on Fire Protection proposes the repeal of sec.sec.431.1 
(formerly 233.113), 431.3 (233.115), 431.5 (233.117), 431.7 (233.119), 431.9 
(233.121), and 431.11 (233.123), concerning minimum standards for fire and arson 
investigator. The repealed sections are replaced by new sections concerning the 
same subject matter with a proposed effective date of January 1, 1994. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the repeals are in effect there will be fiscal 
implications for state and local government as a result of enforcing or 
administering the new sections which replace these repealed sections. The fiscal 
implications are discussed in the preamble for those proposed sections published 
in this issue of the Texas Register. 
 Mr. Bostick also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be the elimination of obsolete language and more effective 
arson investigation. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The repeals are proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its powers and duties; and the Texas Government Code, 
sec.419.022(a)(5) which provides the commission with authority to establish 
minimum standards for admission to employment as fire protection personnel and 
for advanced or specialized fire protection personnel positions. 
 
 
  sec.431.1. Minimum Standards for Basic Fire and Arson Investigation 
Certification. 
 
   
  sec.431.3. Minimum Standards for Intermediate Fire and Arson Investigator 
Certification. 
 
   
  sec.431.5. Minimum Standards for Advanced Fire and Arson Investigator 
Certification. 
 
   
  sec.431.7. Minimum Standards for Master Fire and Arson Investigator 
Certification. 
 
   
  sec.431.9. Minimum Standards for Fire Fighter/Arson Investigator Limited 
Certification. 
 
   
  sec.431.11. Minimum Standards for Fire and Arson Investigator Certification 
for Law Enforcement Personnel. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319951 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
         
  37 TAC sec.sec.431.1, 431.3, 431.5, 431.7, 431.9, 431.11, 431.13 
 
  The Texas Commission on Fire Protection proposes new sec. s431.1, 431.3, 
431.5, 431.7, 431.9, 431.11 and 431.13, concerning minimum standards for fire 
and arson investigators. The new sections replace repealed sections concerning 
the same subject matter and have a proposed effective date of January 1, 1994. 
The new sections increase the training requirements for Basic Fire and Arson 
Investigator Certification by requiring completion of a 122 class hour 
curriculum (currently 90 class hours) or possession of an associate degree, 
including 15 semester hours in fire investigation and fire protection courses 
(currently six semester hours and no degree required). The new sections also 
provide requirements for higher levels of fire investigator certification which 
track the requirements for higher levels in other disciplines. 
 Alton Bostick, standards licensing division director, has determined that for 
the first five-year period the sections are in effect there will be fiscal 
implications for state and local government as a result of enforcing or 
administering the new sections. There will be no additional revenue to the 
state. Training costs to local government and state agencies employing fire 
investigators will be increased by the cost of providing approximately one week 
of additional training. The exact cost will vary depending on the provider of 
training and the compensation of the investigator trainee. Mr. Bostick has also 
determined that the new sections will have no impact on local employment. 
 Mr. Bostick also has determined that for the first five years the sections are 
in effect the public benefit anticipated as a result of enforcing the sections 
will be more consistent training, more effective arson investigators, and 
possible prevention and deterrence of arson and reduction of fire losses. The 
new sections on advanced certification will result in additional education 
focused on knowledge and skills which will increase effectiveness. There will be 
no effect on small businesses. The economic cost in persons required to comply 
with the new requirements will vary depending on educational background, and 
consist mainly of additional time and delay in completion if the college route 
is elected. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The new sections are proposed under the Texas Government Code, sec.419.008, 
which provides the Texas Commission on Fire Protection with authority to adopt 
rules for the administration of its powers and duties; and the Texas Government 
Code, sec.419.022(a)(5), which provides the commission with authority to 
establish minimum standards for admission to employment as fire protection 
personnel and for advanced or specialized fire protection personnel positions. 
 
 
  sec.431.1. Minimum Standards for Fire and Arson Investigation Personnel. 
 
  (a) The effective date of this chapter shall be January 1, 1994. All of full-
time, full-paid personnel employed by any local government entity in Texas who 
are assigned fire and arson investigation duties must be certified by the 
commission. 
   
  (b) Fire and Arson investigation personnel must complete all requirements for 
certification and be certified within one year from the date of initial 
appointment to such position. 
   
  (c)  All full-time, full-paid employees of a local government entity in Texas 
who are assigned fire and arson investigation duties, must be certified, as a 
minimum, as either: 
 
  (1) a Basic Fire and Arson Investigator as specified in sec.431.3 of this 
title (relating to Minimum Standards for Basic Fire and Arson Investigator 
Certification); or 
   
  (2) a Fire Fighter/Fire Investigator Limited as specified in sec.431.9 of this 
title (relating to Minimum Standards for Master Fire and Arson Investigator 
Certification). 
     
  (d) All individuals holding any level of fire and arson investigation 
certification shall be required to comply with the continuing education 
requirements in sec.441.13 of this title (relating to Continuing Education 
Requirements for Fire and Arson Investigators). 
 
     
  sec.431.3. Minimum Standards for Basic Fire and Arson Investigator 
Certification. 
 
  (a) The effective date of this section shall be January 1, 1994. Training 
programs that are intended to satisfy the requirements of this section, that are 
started after the effective date of this section, must meet the curriculum, 
competencies, hours, and examination requirements of this section. 
   
  (b) In order to be certified by the commission as a Basic Fire and Arson 
Investigator an individual must: 
 
  (1) possess a current basic peace officer's certificate and license from the 
Commission on Law Enforcement Officers Standards and Education; 
   
  (2) hold a current commission as a peace officer with the employing entity for 
which the fire and arson investigations will be done; 
   
  (3) complete a commission-approved basic fire and arson investigator program 
and successfully pass the commission examination as specified in Chapter 439 of 
this title (relating to Examinations for Certification) within one year from the 
date of initial appointment to the position. An approved basic fire and arson 
investigation program shall consist of one of the following: 
 
  (A) completion of the commission-approved Basic Fire and Arson Investigator 
Curriculum as specified in Chapter 5, of the commission's document titled 
"Commission Certification Curriculum Manual" as adopted by reference in 
sec.443.9 of this title (relating to Basic Fire and Arson Investigator 
Curriculum); or 
   
  (B) successful completion of the National Fire Academy Resident Fire Arson 
Investigator Course; or 
   
  (C) successful completion of an out-of-state training program which has been 
submitted to the commission for evaluation and found to meet the minimum 
requirements as listed in the Basic Fire and Arson Investigator Curriculum as 
specified in Chapter 5, of the commission's document titled "Commission 
Certification Curriculum Manual" as adopted by reference in sec.443.9 of this 
title; or 
   
  (D) possess, as a minimum, an associate degree from an accredited college or 
university and successfully completing the following college courses: 
           
  Arson Investigator I-three semester hours; 
 Arson Investigator II-three semester hours; 
 Hazardous Materials I-three semester hours; 
 Building Construction -three semester hours; 
 Fire Protection Systems-three semester hours; 
 Total semester hours-15. 
 
 
  sec.431.5. Minimum Standards for Intermediate Fire and Arson Investigator 
Certification. 
 
  (a) Applicants for Intermediate Fire and Arson Investigator Certification must 
complete the following requirements: 
 
  (1) possess a current Intermediate Peace Officer's certificate; and 
   
  (2) hold as a prerequisite a Basic Fire and Arson Investigator certificate as 
defined in sec.431.3 of this title (relating to minimum Standards for Basic Fire 
and Arson Investigator Certification); and 
   
  (3) be a full-time, full-paid Fire and Arson Investigator; and 
   
  (4) acquire one of the following combinations of college education or training 
points and the listed years of fire protection experience, which may include the 
training points used to qualify for Basic Fire and Arson Investigator and/or 
Intermediate Peace Officer certification and the years of experience used to 
qualify for Basic Fire and Arson Investigator: 
 
  (A) 20 training points and at least eight years of service; or 
   
  (B) 20 training points which includes at least 15 college semester hours in 
fire science subjects and at least seven years of service; or 
   
  (C) 40 training points and at least six years of service; or 
   
  (D) 40 training points which includes at least 15 college semester hours in 
fire science subjects and at least five years of service; or 
   
  (E) an associate degree or 60 training points and at least four years of 
service; or 
   
  (F) an associate degree or 60 training points, either of which includes at 
least 15 college semester hours in fire science subjects and at least three 
years of service; or 
   
  (G) a baccalaureate degree or an associate degree in Fire Science or 120 
training points and at least two years of service. 
       
  (b) College level courses from both the upper and lower division may be used 
to satisfy the educational requirement for Intermediate Fire and Arson 
Investigator Certification. 
 
     
  sec.431.7. Minimum Standards for Advanced Fire and Arson Investigator 
Certification. 
 
  (a) Applicants for Advanced Fire and Arson Investigator Certification must 
complete the following requirements: 
 
  (1) possess an Advanced Peace officer's certificate; and 
   
  (2) hold as a prerequisite an Intermediate Fire and Arson Investigator 
certificate; and 
   
  (3) acquire one of the following combinations of college education or training 
points and the listed years of fire protection experience, which may include the 
training points and years of experience used to qualify for all lower levels of 
Fire and Arson Investigator certification: 
 
  (A) 40 training points and at least 12 years of service; or 
   
  (B) 40 training points which includes at least 15 college semester hours in 
fire science subjects and at least 10 years of service; or 
   
  (C) an associate degree or 60 training points and at least nine years of 
service; or 
   
  (D) an associate degree or 60 training points, either of which includes at 
least 15 college semester hours in fire science subjects and at least six years 
of service; or 
   
  (E) a baccalaureate degree or an associate degree in Fire Science or 120 
training points and at least four years of service; or 
   
  (F) a baccalaureate degree or 120 training points either of which includes at 
least 15 college semester hours in fire science subjects and at least three 
years of service. 
     
  (4) As part of the training specified in paragraph (3) of this subsection, 
complete the courses listed in one of the following options: 
 
  (A) Option #1: 
 
  (i) Fire Administration I (college level); and 
   
  (ii) Criminal Investigation (college level) or Courts and Criminal Procedures 
(college level). 
     
  (B) Option #2: 
 
  (i) Incident Command (17 hours); 
   
  (ii) Increasing Personal Effectiveness (12 hours); 
   
  (iii) Building Construction for Fire Suppression Forces: Principles, Wood and 
Ordinary Construction (12 hours); and 
   
  (iv) Building Construction for Fire Suppression Forces: Principles, Non-
Combustible and Fire-Resistive Construction (12 hours). 
     
  (C) Option #3: Advanced Arson for Profit (Bureau of Alcohol, Tobacco, and 
Firearms resident or field course). 
       
  (b) College level courses from the upper and lower divisions may be used to 
satisfy the educational requirement for Advanced Fire and Arson Investigator 
Certification. 
 
     
  sec.431.9. Minimum Standards for Master Fire and Arson Investigator 
Certification. 
 
  (a) Applicants for Master Fire and Arson Investigator must complete the 
following requirements: 
 
  (1) possess an Advanced Peace Officer's certificate; and 
   
  (2) hold as a prerequisite an Advanced Fire and Arson Investigator 
certificate; and 
   
  (3) acquire one of the following combinations of college education and the 
listed years of fire protection experience, which may include the college 
semester and years of experience used to qualify for all lower levels of Fire 
and Arson Investigator certification: 
 
  (A) an associate degree or 60 college semester hours and at least 12 years of 
service; or 
   
  (B) an associate degree or 60 college semester hours, either of which must 
include at least 15 college semester hours in fire science subjects and at least 
nine years of service; or 
   
  (C) an associate degree in Fire Science in and at least six years of service; 
or 
   
  (D) a baccalaureate degree or 120 college semester hours and six years of 
service; or 
   
  (E) a baccalaureate degree or 120 college semester hours, either of which must 
include at least 15 college semester hours in fire science subjects and at least 
four years of service; or 
   
  (F) a master's degree and at least four years of service. 
       
  (b) College level courses from both the upper and lower division may be used 
to satisfy the educational requirement for Master Fire and Arson Investigator 
Certification. 
 
     
  sec.431.11. Minimum Standards for Fire Fighter/Arson Investigator Limited 
Certification. 
 
  (a) The purpose of this section is to set forth the requirements and rules 
governing the issuance of certificates for Fire Fighter/Fire Arson Investigator 
Limited certification. The commission has ruled that an individual cannot be 
simultaneously assigned as a full-time fire fighter and a full-time fire and 
arson investigator with the same employing entity. An entity may assign a full-
time fire fighter, limited fire and arson investigator duties, under the direct 
or indirect supervision of a full-time fire and arson investigator. An example 
of direct supervision would be a scenario where the limited investigator would 
have as an immediate supervisor, a full-time fire and arson investigator, during 
the time he was assigned to investigation duties. An example of indirect 
supervision would be a scenario where the limited investigator's immediate 
supervisor is a fire suppression officer; however, the employing entity must 
have a full-time investigator who is ultimately responsible for the 
investigation activity of the entity and available for supervision of the 
limited investigator as necessary to enable the limited investigator to carry 
out the assigned duties. 
   
  (b) Applicants for Fire Fighter/Arson Investigators Limited certification must 
complete the following requirements. 
 
  (1) The applicant must possess at least Basic Structure Fire Protection 
Personnel certification as set forth in sec.423.1 of this title (relating to 
Minimum Standards for Basic Structure Fire Protection Personnel Certification). 
   
  (2) The applicant must possess a current basic peace officer's certificate and 
license from the Commission on Law Enforcement Officers Standards and Education. 
   
  (3) The applicant must hold a current commission as a peace officer with the 
employing entity for which the arson investigations will be done. 
   
  (4) The applicant must complete a commission-approved fire and arson 
investigator curriculum as specified in sec.431.3(b)(3) of this title (relating 
to Minimum Standards for Basic Fire and Arson Investigator Certification), 
within one year from the date of initial appointment to the position. 
   
  (5) The applicant must pass a commission examination as specified in Chapter 
439 of this title (relating to Examinations for Certification). 
     
  (c) Individuals who hold a Fire Fighter/Arson Investigator Limited 
certification are not eligible to apply for Intermediate, Advanced, or Master 
Fire and Arson Investigator certification. 
 
     
  sec.431.13. Minimum Standards for Fire and Arson Investigator Certification 
for Law Enforcement Personnel. 
 
  (a) A permanent, full-time, full-paid law enforcement officer designated as a 
fire and arson investigator by an "appropriate" local authority is eligible for 
certification by complying with sec.431.3 of this title (relating to Minimum 
Standards for Basic Fire and Arson Investigation Certification). 
   
  (b) An individual who holds Law Enforcement Fire and Arson Investigator 
certification is not eligible to apply for Intermediate, Advanced, or Master 
fire and arson investigator certification. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319952 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
             Chapter 437. Fees 
  
  37 TAC sec.437.5 
 
  The Texas Commission on Fire Protection proposes an amendment to sec.437.5 
(formerly sec.239.5), concerning fees. The amendment deletes redundant language 
and clarifies the certification period to be from November 1-October 31. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
 Mr. Bostick also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the deletion of obsolete language and a clearer understanding in 
the fire service of rules applicable to the certification period. There will be 
no effect on small businesses. There is no anticipated economic cost to persons 
who are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendment is proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its power and duties; and the Texas Government Code, 
sec.419.026, which authorizes the commission to set and collect fees for each 
certificate that the commission issues or renews. 
 
 
  sec.437.5. Fees-Renewal. 
 
  (a)-(f) (No change.) 
   
  (g) Certification renewal notices will be mailed to all employing entities at 
least 60 days prior to [the renewal date of] October 31 of each calendar year. 
   
  (h)-(l) (No change.) 
   
  <nl>(m) The certification period shall be from November 1-October 31 of each 
calendar year. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319953 
  Jack Woods 
 General Counsel 
 Texas Commission of Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
             Chapter 439. Examinations for Certification 
  
  37 TAC sec.439.13, sec.439.15 
 
  The Texas Commission on Fire Protection proposes amendments to sec.439.13 
(formerly sec.241.13) and sec.439.15 ( s241.15), concerning examinations for 
certification. The amendment to sec.439.13 deletes the language which provides 
for the retake of the entire performance skills portion of the examination if 
one portion is not passed and adds language to provide for the retest of each 
individual only on the failed section. The amendment to sec.439.15 adds language 
to clarify that a person who is called to active military duty or who serves in 
the state legislature and qualifies for legislative leave is not considered to 
have a break in service, and is not required to take the proficiency 
examination. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections. 
 Mr. Bostick also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be the removal of retest provisions deemed unnecessarily harsh 
and the elimination of potential conflicts with other state and federal laws 
concerning military leave and legislative leave. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendments are proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its power and duties; and the Texas Government Code, 
sec.419.032(b), which authorizes the commission to establish qualifications 
relating to basic certification tests. 
 
 
  sec.439.13. Performance Skills. <ol> If performance skills are required as 
part of a commission examination, the performance skills portion shall be 
conducted as follows: 
 
  (1)-(5) (No change.) 
   
  [(6) Failure of any part of the performance skills portion of the examination 
constitutes failure of the entire performance skills portion of the 
examination.] 
   
  <nl>(6)<ol>[(7)] An examinee that fails [the] <nl>a <ol> performance [skills 
portion of the examination] <nl>skill <ol> shall be allowed one retest of [the]  
<nl>that<ol> performance [skills portion] <nl>skill,<ol> at a time and place to 
be determined by the staff proctor. In no case shall a retest be conducted until 
after the conclusion of the original examination. 
   
  [(8) An examinee being retested on the performance skills, shall be retested 
on the entire performance skills portion. No single skill retest will be 
permitted. 
   
  [(9) An examinee being retested on the performance skills portion of the 
examination shall be tested on randomly selected skills from the same subject 
areas as the original examination, as determined by the staff proctor.] 
 
     
  sec.439.15. Testing for Certification Status. 
 
  (a)-(b) (No change.) 
   
  <nl>(c) For purposes of this section, the time that a person serves in the 
military who is called to active duty in accordance with applicable federal law 
or that a person serves in the state legislature who qualifies for legislative 
leave under the provisions of Texas Civil Statutes, Article 6252-4c, is not 
considered a break in service for any reason and the person is not required to 
complete the examination requirement upon return to employment to a fire 
protection personnel position in order to obtain a new certificate, provided 
that the individual must comply with the continuing education requirement 
applicable to the certificate previously held by the individual after the 
effective date of this rule except as provided by federal law. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319954 
  Jack Woods 
 General Counsel 
 Texas Commission of Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
             Chapter 441. Continuing Education 
  
  37 TAC sec.sec.441.1, 441.3, 441.5, 441.7, 441.9 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Commission on Fire Protection or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Commission on Fire Protection proposes the repeal of 37 TAC 
sec.sec.441.1 (formerly 247.1), 441.3 (247.3), 441.5 (247.5), 441.7 (247.7), and 
441.9, concerning continuing education. The sections proposed for repeal will be 
replaced by new sections relating to the same subject matter published in this 
issue of the Texas Register  as proposed new rules. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the repeals are in effect there will be no fiscal 
implications for state or local government as a result of enforcing and 
administering the repeals. The fiscal implications of the proposed new sections 
which replace the repealed sections are discussed in the preamble to the 
proposed new section also published in this issue of the Texas Register. 
 Mr. Bostick also has determined that for each year of the first five years that 
the repeals are in effect the public benefit anticipated as a result of 
enforcing the repeals will be the replacement of obsolete language by new 
sections intended to give a clearer understanding in the fire service of rules 
applicable to continuing education. There will be no effect on small businesses. 
There will be no economic costs to persons required to comply with the repealed 
sections. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The repeals are proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its powers and duties; and the Texas Government Code, 
sec.419.032(b), which authorizes the commission to establish qualifications 
relating to continuing education or training programs. 
 
 
  sec.441.1. Objective. 
 
   
  sec.441.3. Definitions. 
 
   
  sec.441.5. Requirements. 
 
   
  sec.441.7. Continuing Education for Structure Fire Protection Personnel. 
 
   
  sec.441.9. Continuing Education for Aircraft Crash and Rescue Fire Protection 
Personnel. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319955 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
         
  37 TAC sec.sec.441.1, 441.3, 441.5, 441.7, 441.9, 441.11, 441.13, 441.15 
 
  The Texas Commission on Fire Protection proposes new sec. s441.1, 441.3, 
441.5, 441.7, 441.9, 441.11, 441.13, and 441.15, concerning continuing 
education. The new sections replace repealed sections relating to the same 
subject matter for continuing education and establish continuing education 
requirements for all disciplines of fire protection personnel. The new sections 
more clearly define the types of continuing education known as "Track-A" and 
"Track-B," and apply restrictions on subject matter to both "Tracks." In 
addition, the new sections further limit the repetition of topics from the same 
subject (or section of the curriculum) in consecutive years. The new rules 
eliminate the provisions for a 60-day "extension period" and proficiency test 
requirement for correcting a deficiency and replace those provisions with a 
prohibition of assignment to or performance of duties authorized by the 
certificate until the deficiency is corrected and documented. Finally, the new 
sections impose a continuing education requirement for marine fire protection 
personnel, fire inspection personnel, and fire and arson investigation personnel 
for certification periods commencing after October 31, 1993. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the sections are in effect there will be no 
fiscal implications for state government as a result of enforcing the new 
sections. There will be no fiscal implications for local government as a result 
of enforcing the continuing education rules for structure fire protection 
personnel and aircraft crash and rescue fire protection personnel. However, for 
cities that do not currently provide continuing education for their marine fire 
protection personnel, fire inspection personnel, and arson investigators, there 
will be fiscal implications. The exact cost of pulling those personnel off duty 
for 20 hours each year and providing the training will depend on the rate of 
compensation for the personnel involved as well as the source of the training. 
 Mr. Bostick also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be the deletion of obsolete language and a clearer 
understanding in the fire service of rules applicable to continuing education 
and that the competency of all certified fire protection personnel will be 
maintained or enhanced. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The new sections are proposed under the Texas Government Code, sec.419.008, 
which provides the Texas Commission on Fire Protection with authority to adopt 
rules for the administration of its powers and duties; and the Texas Government 
Code, sec.419.032(b), which authorizes the commission to establish 
qualifications relating to continuing education or training programs. 
 
 
  sec.441.1. Objective.  Continuing education is intended to maintain or 
increase the knowledge and skills pertinent to the fire service. The effective 
date of this chapter shall be for any certification period beginning after 
October 31, 1993. 
 
   
  sec.441.3. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
   Certification Period -That period from the time a certificate is obtained or 
renewed until it is time for the certificate to be renewed again. See 
sec.437.5(b) of this title (relating to Fees -Renewal), for the definition of 
renewal period. 
   
   Qualified Instructor -An individual, who may or may not be certified, but 
has, in either case, met as a minimum, the requirements for basic instructor 
certification. 
   
   Track-A-Training intended to maintain previously learned skills as stated in 
the commission certification curriculum manual for the assigned discipline. 
   
   Track-B-Training intended to develop new skills in an assigned discipline. 
 
   
  sec.441.5. Requirements. 
 
  (a) Continuing education shall be required in order to renew certification for 
any discipline which has a continuing education requirement stated in this 
chapter. 
   
  (b) The continuing education requirement for renewal of certification shall 
consist of a minimum of 20 hours of training to be conducted during the 
certification period. Only 20 total hours of continuing education shall be 
required to renew all Texas Commission on Fire Protection certificates if any 
individual holds more than one certificate. 
   
  (c) Track-A training must be conducted by a qualified or certified instructor. 
   
  (d) The continuing education program must be administered by a certified 
instructor. 
   
  (e) No more than four hours per year in any one section of the appropriate 
chapter of the Commission Certification Curriculum Manual may be counted toward 
the 20-hour continuing education requirement for Track-A. 
   
  (f) Hours of training in a subject may not be used to satisfy the continuing 
education requirement for the current year if the same subject was used to 
satisfy the requirement for the previous year. 
   
  (g) There shall be no "hour per subject limit" placed on Track-B courses. 
   
  (h) The administrative head of the department may select subject matter for 
continuing education appropriate for a particular discipline. Refer to the 
appropriate section of this chapter for a list of subjects not qualifying for 
continuing education credit for individual disciplines. 
   
  (i) The administration head of the department must certify whether or not the 
individuals whose certificates are being renewed have complied with the 
continuing education requirements of this chapter on the certification renewal 
application. Unless exempted from the continuing education requirements, an 
individual who fails to comply with the continuing education requirements in 
this chapter shall be notified by the commission of the failure to comply. 
   
  (j) After notification from the commission of a failure to comply with 
continuing education requirements, an individual who holds a certificate is 
prohibited from performing any duties authorized by the certificate, until such 
time as the deficiency has been resolved and written documentation is furnished 
by the department head for approval by the commission, through its Standards and 
Licensing Division Director. No person may assign duties or accept an assignment 
of duties in violation of this rule. Continuing education hours obtained to 
resolve a deficiency may not be applied to the continuing education requirements 
for the current certification period. 
   
  (k) Any person who does not serve at least six months in a discipline 
requiring continuing education may be exempted from the continuing education 
requirement for that certification period only. Such exemptions shall be 
determined by the head of the department and reported to the commission on the 
renewal application. 
 
     
  sec.441.7. Continuing Education for Structure Fire Protection Personnel. 
 
  (a) Continuing education will be required for personnel assigned as Structure 
Fire Protection personnel. 
   
  (b) Subjects selected to satisfy the continuing education requirement may be 
selected from either Track-A, Track-B, or a combination of the two. 
   
  (c) The following subjects do not qualify for continuing education credit in 
either Track-A or Track-B: 
 
  (1) Commission Rules and Regulations; 
   
  (2) Emergency Medical Courses; 
   
  (3) Hazardous Materials Courses; 
   
  (4) Public Relations; 
   
  (5) Records and Reports; 
   
  (6) Physical Fitness. 
 
       
  sec.441.9. Continuing Education for Aircraft Crash and Rescue Fire Protection 
Personnel. 
 
  (a) Continuing education will be required for personnel assigned as Aircraft 
Crash and Rescue Fire Protection Personnel. 
   
  (b) Continuing education must meet the specific training requirements of FAR 
139.319, j, 2 (pertaining to Aircraft Rescue and Firefighting Operational 
Requirements). 
 
     
  sec.441.11. Continuing Education for Marine Fire Protection Personnel. 
 
  (a) Continuing education will be required for personnel assigned as Marine 
Fire Protection Personnel for any certification period beginning after October 
31, 1993. 
   
  (b) Subjects selected to satisfy the continuing education requirement may be 
selected from either Track-A, Track-B, or a combination of the two. 
   
  (c) The following subjects do not qualify for continuing education credit in 
either Track-A or Track-B: 
 
  (1) Emergency Medical Courses; 
   
  (2) Hazardous Materials Courses; 
   
  (3) Report Writing. 
 
       
  sec.441.13. Continuing Education for Fire Inspection Personnel. 
 
  (a) Continuing education will be required for personnel assigned as Fire 
Inspection Personnel. 
   
  (b) Subjects selected to satisfy the continuing education requirement may be 
selected from either Track-A, Track-B, or a combination of the two. 
   
  (c) The following subjects do not qualify for continuing education credit in 
either Track-A or Track-B: 
 
  (1) Commission Rules and Regulations; 
   
  (2) Oral and Written Communications. 
 
       
  sec.441.15. Continuing Education for Fire and Arson Investigator. 
 
  (a) Continuing education will be required for personnel assigned as Fire and 
Arson Investigation Personnel. 
   
  (b) Subjects selected to satisfy the continuing education requirement may be 
selected from either Track-A, Track-B, or a combination of the two. 
   
  (c) Commission Rules and Regulations do not qualify for continuing education 
credit in either Track-A or Track-B. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319956 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
             Chapter 443. Adoption By Reference 
  
  37 TAC sec.sec.443.1, 443.7, 443.9 
 
  The Texas Commission on Fire Protection proposes amendments to sec.443.1 
(formerly 247.1), concerning the adoption by reference of the basic fire 
suppression curriculum and new sec.443.7 and sec.443.9, concerning adoption by 
reference of the basic fire inspection personnel curriculum and the basic fire 
and arson investigation curriculum respectively. The amendment to sec.443.1 
adopts a revised version of the basic fire suppression curriculum that adds new 
references to sec.119 and sec.129. The new sections, concerning the fire 
inspection curriculum and arson investigation curriculum, replace repealed 
sections concerning the same subject matter and have a proposed effective date 
of January 1, 1994. The new basic fire inspection curriculum includes 20 subject 
areas organized with competencies and objectives in the same manner as the basic 
fire suppression curriculum with total hours of training amounting to 226 hours. 
Persons holding basic structure certification are not required to repeat 52 
hours in subjects already covered in the basic fire suppression curriculum. The 
new basic fire and arson investigator curriculum has 23 subject areas organized 
in the same manner with competencies and objectives totaling 122 class hours. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the sections are in effect there will be fiscal 
implications for state and local government as a result of enforcing or 
administering the new sections, while the amendment to sec.443.1 has no fiscal 
implications. The fiscal implications concerning new sec.443.7 are discussed in 
the preamble for the proposed new chapter 429 concerning minimum standards for 
fire inspection personnel published in this issue of the Texas Register . The 
fiscal implications of new sec.443.9 are discussed in the preamble for proposed 
new Chapter 431 concerning minimum standards for Fire and Arson Investigator 
published in this issue of the Texas Register. 
 Mr. Bostick also has determined that for each year of the first five years that 
the sections are in effect the public benefit anticipated as a result of 
enforcing the sections as proposed will be easier identification of source 
material for meeting curriculum competencies and objectives and more effective 
fire inspection and arson investigation. There will be no effect on small 
businesses. The anticipated economic cost to persons who are required to comply 
with the section as proposed will be nominal, as most departments provide 
training for their fire inspection and arson investigation personnel, although 
some additional time may be required. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendment is proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its powers and duties; and the Texas Government Code, 
sec.419.022(a)(5), which provides the commission with authorization to establish 
qualifications for admission to employment as fire protection personnel and for 
advanced or specialized fire protection personnel positions. 
 
 
  sec.443.1. Basic Fire Suppression Curriculum. 
 
  (a) (No change.) 
   
  (b) The Texas Commission on Fire Protection adopts by reference Chapter 1, 
Basic Fire Suppression Curriculum, of the Commission's document titled 
"Commission Certification Curriculum Manual" as amended <nl>January 13, 1993 
<ol> [October 14, 1992]. 
   
  (c) (No change.) 
 
     
  sec.443.7. Basic Fire Inspection Personnel Curriculum 
 
  (a) The effective date of this section shall be January 1, 1994. 
   
  (b) The Texas Commission on Fire Protection adopts by reference Chapter 4, 
Basic Fire Inspection Personnel Curriculum, of the Commission's document titled 
"Commission Certification Curriculum Manual" as amended September 4, 1992. 
   
  (c) The document adopted by reference in this section is on file in the 
offices of the Texas Commission on Fire Protection, 3006-B Longhorn Boulevard, 
Austin, Texas 78759, and is available for public inspection during regular 
working hours. A copy of the document may be obtained upon request and payment 
of the fee as specified in Chapter 437 of this title (relating to Fees). 
 
     
  sec.443.9. Basic Fire and Arson Investigation Personnel Curriculum. 
 
  (a) The effective date of this section shall be January 1, 1994. 
   
  (b) The Texas Commission on Fire Protection adopts by reference Chapter 5, 
Basic Fire and Arson Investigation Personnel Curriculum, of the Commission's 
document titled "Commission Certification Curriculum Manual" as amended 
September 4, 1992. 
   
  (c) The document adopted by reference in this section is on file in the 
offices of the Texas Commission on Fire Protection, 3006-B Longhorn Boulevard, 
Austin, Texas 78759, and is available for public inspection during regular 
working hours. A copy of the document may be obtained upon request and payment 
of the fee as specified in Chapter 437 of this title (relating to Fees). 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319959 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
             Chapter 491. Voluntary Regulation of State Agencies and State 
Agency Employees 
  
  37 TAC sec.491.1 
 
  The Texas Commission on Fire Protection proposes an amendment to sec.491.1, 
concerning election of components for voluntary regulation. The amendment 
clarifies the provisions for election of components and promotes consistency 
with terminology used in other chapters pertaining to fire protection personnel. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
 Mr. Bostick also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the deletion of obsolete language and a clearer understanding in 
the fire service of rules applicable to the voluntary regulation of state 
agencies and state agency employees. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the section as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendment is proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its power and duties; and the Texas Government Code, 
sec.419.083, which provides for voluntary regulation of certain state agencies 
and state agency employees under one or more discrete components of the 
commission's regulatory authority under the Texas Government Code, Chapter 419, 
Subsection B, as defined by commission rule. 
 
 
  sec.491.1. Election of Components for Voluntary Regulation. <ol> A state 
agency or state employee eligible for regulation under the Texas Government 
Code, sec.419.083, may apply to the commission of regulation. The agency or 
individual must submit an application that elects regulation under one or more 
of the following components: 
 
  (1)-(3) (No change.) 
   
  (4) standards for aircraft <nl>crash<ol> and rescue fire protection personnel 
<nl>certification; 
   
  (5) standards for aircraft crash and rescue fire protection personnel 
<nl>training facilities; 
   
  (6) standards for marine fire protection personnel  <nl>certification; 
   
  (7) standards for fire protection [instructors]  <nl>instructor certification; 
   
  (8) standards for fire [inspectors] <nl>inspector certification; 
   
  (9) standards for fire and arson [investigators]  <nl>investigator 
certification;<ol> and 
   
  (10) standards for protective clothing. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319957 
  Jack Woods 
 General Counsel 
 Texas Commission of Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
             Chapter 493. Voluntary Regulation of Federal Agencies and Federal 
Agency Employees 
  
  37 TAC sec.493.1 
 
  The Texas Commission on Fire Protection proposes an amendment to sec.493.1, 
concerning election of components for voluntary regulation of certain federal 
agencies and federal employees. The amendment clarifies the provisions for 
election of components and promotes consistency with terminology used in other 
chapters pertaining to fire protection personnel. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
 Mr. Bostick also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be the deletion of obsolete language and a clearer understanding in 
the fire service of rules applicable to the voluntary regulation of federal 
agencies and federal agency employees. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the section as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendment is proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its power and duties; and the Texas Government Code, 
sec.419.084, which provides for voluntary regulation of certain federal agencies 
and federal agency employees under one or more discrete components of the 
commission's regulatory authority under the Texas Government Code, Chapter 419, 
Subsection B, as defined by commission rule. 
 
 
  sec.493.1. Election of Components for Voluntary Regulation. <ol> A federal 
agency or federal employee eligible for regulation under the Texas Government 
Code, sec.419.084, may apply to the commission for regulation. The agency or 
individual must submit an application that elects regulation under one or more 
of the following components: 
 
  (1)-(3) (No change.) 
   
  (4) standards for aircraft <nl>crash<ol> and rescue fire protection personnel 
<nl>certification; 
   
  (5) standards for aircraft crash and rescue fire protection personnel 
<nl>training facilities; 
   
  (6) standards for marine fire protection personnel  <nl>certification; 
   
  (7) standards for fire protection [instructors]  <nl>instructor certification; 
   
  (8) standards for fire [inspectors] <nl>inspector certification; 
   
  (9) standards for fire and arson [investigators]  <nl>investigator 
certification; 
   
  (10)-(11) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319958 
  Jack Woods 
 General Counsel 
 Texas Commission of Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
                 
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part IX. Texas Department on Aging 
  Chapter 273. Transportation Service Standards 
  
  Statutes and Regulations 
 
  40 TAC sec.sec.273.1, 273.3, 273.5, 273.7, 273.9, 273.11, 273.13, 273.15, 
273.17, 273.19, 273.21, 273.23, 273.25, 273.27, 273.29 
 
  The Texas Department on Aging proposes new concerning transportation service 
standards as a service authorized under the Older Americans Act, Title III, as 
amended. This chapter establishes definitions, policies, and procedures to be 
followed when area agencies contract for this service or when they monitor this 
service to determine its effectiveness in promoting the health and independence 
of the elderly of Texas. 
 Ann Ammons, Director of Field Operations, Texas Department on Aging, has 
determined that for the first five-year period the sections are in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administering the sections. 
 Ms. Ammons also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be greater understanding of the processes required of area 
agencies on aging to assure proper components of this service are included in 
contract stipulations and that monitoring of contracting programs is based on 
clear requirements established by the department. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed. 
 The anticipated economic cost to persons who are required to comply with the 
section as proposed will be none. 
 Request for public comments on the proposal may be submitted to Ann Ammons, 
Director of Field Operations, Texas Department on Aging, P.O. Box 12786, Austin, 
Texas 78711. 
 The new sections are proposed under the Human Resources Code, sec.101, which 
provide the Texas Department on Aging with the authority to promulgate rules 
governing the operation of the department. 
 
 
  sec.273.1. Transportation Service Standards. 
 
  (a) Purpose. This chapter establishes policies, procedures, and standards that 
govern the provision of elderly transportation services authorized under Title 
III-B of the Older Americans Act. This chapter will be use by the Texas 
Department on Aging (TDoA), area agencies on aging (AAA), and all Title III-B 
transit service providers. These standards will be useful in carrying out the 
day-to-day administration and operations of a transit program serving elderly 
residents of Texas; establishing new transportation services for the elderly; 
reviewing current transportation service; and upgrading transportation services 
uniformly throughout the state. These standards only apply to Title III-B funded 
transit service providers. Transportation services not funded all or in part 
with Title III-B funds are not subject to these standards. 
   
  (b) Definitions. The following words and terms, when used in this chapter, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (1) Elderly transportation-The act or process of transporting a person 60 
years of age or older from one location to another. 
   
  (2) Unit of service-A unit of transportation service is a one-way trip 
(transporting a person from one place to another. From point "A" to point "B" is 
one unit of service. From point "B" back to point "A" or to another point, such 
as "C" or "D" constitutes another unit of service). 
     
  (c) Method Of Service Delivery. 
 
  (1) Transportation services provided to an eligible Title III-B recipients 
will consist of non-emergency "curb-to-curb" demand-response and/or fixed route 
service. Transit services provided all or in part with Title III-B funds can be 
provided by public agencies, nonprofit agencies, private for profit agencies, 
private individuals, case managers, or any combination of the above mentioned 
alternatives. The area agency on aging can also provide transportation service 
as a direct service. Transit services can be provided directly by the primary 
Title III contractor or the primary contractor can purchase transit service from 
a subcontractor or through vouchers purchased by the primary Title III 
contractor or AAA. The vouchers can be distributed to eligible Title III 
recipients who can exchange the vouchers for transportation services. 
   
  (2)  Title III funded transit service providers will make transit services 
available and affordable to all elderly residents of Texas. Transportation 
services will be designed by transit service providers to transport elderly 
persons, including those elderly persons physically impaired in accordance with 
the Americans with Disability Act of 1990. Eligible persons can be taken to and 
from non-emergency medical and health care appointments, to health and human 
service agencies, to meals programs, senior center activities, to personal 
business, shopping, education, employment, training, recreational activities, 
and to other needed community functions and activities as identified in the 
transit service providers' written contract with the AAA. 
     
  (d) Service Priorities. The AAA will require transit service providers to 
establish written policies concerning priority service for trip destination, 
trip purpose, geographic areas covered, routes, and schedules that will afford 
opportunities and preference to low-income older individuals residing in rural 
areas; older individuals with greatest economic and social needs (with 
particular attention to low-income minority individuals); older individuals with 
severe disabilities and older individuals with limited English-speaking ability 
to live dignified, independent, and productive lives. 
   
  (e) Coordination. The AAA and its transit service providers will coordinate 
with other local, state, federal and private sector transportation agencies 
whenever possible to enhance cost effectiveness, to better serve elderly 
citizens of Texas, and to purchase needed vehicles and transit equipment. The 
AAA through its Area Plan shall provide assurances that the AAA and its transit 
service providers will coordinate with all health and human services transit 
providers within its planning region. Coordination among health and human 
service transit providers will afford older individuals the ability to obtain 
transportation services associated with access to services provided under Title 
III, to services under Title VI, to comprehensive counseling service, and to 
legal assistance. Local financial commitments are vital to the success of any 
transportation program; therefore the AAA and its transit services provider will 
allow all organizations or communities interested enough to seek a solution to a 
transportation problem to invest some of its own time and\or money to the 
success of the transportation program. 
   
  (f) Service Outcomes. Participants will gain access to affordable quality 
transportation that is safe, reliable, and dependable to allow elderly persons 
the ability to take care of personal business and participate in community 
activities. 
 
  (1) Participants will have access to community resources to assist them in 
maintaining independent lives in their own communities. 
   
  (2) The AAA will be responsible for providing the transit service provider 
with all AAA established policies and procedures related to the delivery of 
transportation services in the region. The transit service provider will be 
responsible for ensuring that services are delivered according to the AAA 
established policies and procedures. 
   
  (3) Transit service providers will have clear guidance and directions on 
providing quality Title III transportation services. 
   
  (4) Transit staff will receive appropriate training to provide the highest 
level of care to participants using their transportation service. 
   
  (5) Transit administrators will have guidance on required reports, record 
keeping, minimum insurance requirements, staffing requirements, safety, 
evaluation, and monitoring procedures. 
   
  (6) Transit providers will have guidance and encouragement on required 
coordination efforts with other transit providers and transit funding agencies. 
 
       
  sec.273.3. Eligibility. 
 
  (a) Client Eligibility. To be eligible for Title III-B transit services, an 
individual must be 60 years of age or older. The Transit service provider will 
give special emphasis to older individuals residing in rural areas; older 
individuals with greatest economic and social needs (with particular attention 
to low-income minority individuals) ; older individuals with severe disabilities 
and older individuals with limited English-speaking ability. 
   
  (b) Client Intake Requirements. The transit service providers will collect the 
name, address, telephone number and date of birth of all eligible participants 
receiving transit services prior to them participating in the transit program. 
The transit service provider will provide client intake information and 
performance data to the AAA through a Modem or on a floppy disk that will 
generate a report on the Automated Information System provided by the TDoA. 
   
  (c) Escorts. In instances where eligible persons provide their own escort, the 
escort does not have to meet the 60 year of age criteria to accompany the 
eligible individual. 
   
  (d) Service to Persons Under the Age Of 60. Transit service providers will be 
encouraged by the AAA to provide transit services to persons under the age of 60 
at the full unit cost on transit vehicles purchased and operated all or in part 
with Title III-B funds to promote the utilization of all transit vehicles to 
their fullest. 
 
     
  sec.273.5. Program Contributions. <ol>em>>The Older Americans Act contains 
provisions for participants in services to contribute to the provision of those 
services. The following guidelines will be followed in establishing a procedure 
to facilitate this provision. 
 
  (a) Written procedures. The AAA will establish and provide to all transit 
service providers written procedures that will informally ensure participant 
confidentiality. 
   
  (b) Posting of schedules. All transit service providers will establish and 
post a "Fee Schedule". The "Fee Schedule" will contain the cost for transit 
services to the "General Public", the elderly and disabled. The "Fee Schedule" 
will be posted on all transit vehicles in an obvious location, so the elderly 
and disable participants can see the actual cost of the service they are 
receiving. 
   
  (c) Inability to contribute. Eligible persons will not be denied transit 
services provided by Title III transit service providers, because they do not 
have the money to pay for and/or contribute to the service they are accessing. 
 
     
  sec.273.7. Legal Requirements for Insurance Coverage.  The AAA will monitor 
all transit service providers for proof of insurance coverage annually. All 
transit service providers' vehicles funded and operated all or in part with 
Title III funds will have the following minimum insurance coverage. 
 
  (1) Liability. In accordance with the Texas Railroad Commission 16 TAC 
sec.5.171 (relating to Evidence of Insurance Required) prescribed as follows: 
"Combined single limit for bodily injuries and property damage a minimum amount 
of $500,000 to or death of all persons injured or killed in any accident, and 
loss or damage in any one accident to property of others (excluding cargo) for 
vehicles with the maximum seating capacity of 24 seats or less including the 
driver and $1,500,000 for vehicles with seating capacity of 25 seats and more 
including the driver." EXCEPTION: Personally owned vehicles and vehicles for 
hire will adhere to minimum Texas State liability laws governing the use of 
passenger cars. 
   
  (2) Collision and Comprehensive Insurance. Collision and comprehensive 
coverage will be maintained by the transit service provider unless the 
operator/subcontractor accepts responsibility in the contract with the area 
agency on aging for replacement or damage. 
   
  (3) Proof of minimum insurance. The transit service providers will maintain 
proof of minimum insurance coverage in each vehicle funded all or in part with 
Title III funds. 
   
  (4) Accident Reporting. The AAA will provide all transit service providers 
with the standard TDoA Accident/Incident Reporting Form. The following 
procedures are required by the TDoA for reporting transportation 
accidents/incidents. 
 
  (A) An accident/incident involving personal injury requiring medical 
attention, hospitalization or death must be reported by the transit service 
provider to the AAA within 12 hours following the accident/incident. 
   
  (B) An accident/incident involving personal injury requiring medical 
attention, hospitalization or death must be reported by the AAA to the TDoA 
within 24 hours following the accident/incident. 
   
  (C) When an accident/incident occurs without personal injury in a Title III 
funded transit program, a standardized TDoA "Accident/Incident" reporting form 
and a police report (if necessary) must be submitted to the AAA by the transit 
service provider within five working days following the accident/incident. 
   
  (D) When an accident/incident occurs without personal injury in a Title III 
funded transit program, a standardized TDoA "Accident/Incident" reporting form 
and a police report (if applicable) must be submitted to the TDoA by the AAA 
within 10 working days following the accident/incident. 
 
       
  sec.273.9. Staff Requirements. <ol> The AAA will monitor the transit service 
provider to verify hiring procedures used by the transit service provider in 
hiring qualified drivers for Title III transit programs. 
 
  (1)  Staffing Qualifications and Conditions For Employment. The transit 
service provider will use the following qualifications and requirements as 
prerequisites to hiring a driver in a Title III-B transportation program. The 
following qualifications and requirements must be met by all prospective drivers 
prior to providing transportation services to participants. 
 
  (A)  Applicant will have a valid Texas Driver's License with the appropriate 
classification based on the type and size of vehicle he/she will be operating. 
Class C Operators driver's license permits a person to drive: 
 
  (i) a single two-axle vehicle with a gross vehicle weight that does not exceed 
24, 000 pounds, along or towing either a vehicle with a gross vehicle weight 
that does not exceed 10,000 pounds or a farm trailer with gross vehicle weight 
that does not exceed 20,000 pounds; and 
   
  (ii) a bus with a gross vehicle weight that does not exceed 24,000 pounds and 
a seating capacity of no more than 15 passengers including the driver. 
     
  (B) All drivers who operate a commercial motor vehicle will be required to 
have a Commercial Drivers License (CDL) by April 1, 1992. There are three basic 
types or classes of Commercial Driver's Licenses. 
 
  (i) CLASS A is any combination of vehicles with a gross combination weight 
rating of 26,001 pounds or more, provided the gross vehicle weight rating of the 
vehicle or vehicles towed exceeds 10,000 pounds; 
   
  (ii) CLASS B is any single vehicle with a gross vehicle weight rating of 
26,001 pounds or more, any one of those vehicles towing a vehicle that does not 
exceed 10,000 pounds gross vehicle weight rating, and any vehicle designed to 
transport 24 passengers or more, including the driver; and 
   
  (iii) CLASS C is any single vehicle with a gross vehicle weight rating of less 
than 26,001 pounds and any one of those vehicles towing another vehicle with a 
gross vehicle weight rating that does not exceed 10,00 pounds if either vehicle 
is: 
 
  (I)  designed to transport 16 or more passengers including the driver: or 
   
  (II) used in the transportation of hazardous materials that require the 
vehicle to be placarded under 49 Code of Federal Regulation, Part 172, Subpart 
F. 
       
  (C) Applicant will pass a road test given by the transit service provider in 
the type of vehicle he/she will be operating prior to transporting any Title III 
program participants. 
   
  (D) A current copy of the drivers license of the successful driver applicant 
will be on file at the transit service provider's central office at all times. 
   
  (E)  Applicant will be in compliance with standards set by the insurance 
carrier and/or the governing body. 
   
  (F) The transit service provider will require all applicant/employee to pass a 
basic physical examination which includes at least blood pressure, hearing, and 
vision testing before transporting Title III participants. Applicant/employee 
operating vehicles using lift equipment or transporting mobility impaired 
passengers will be required to pass a more extensive physical examination to 
determine physical ability to lift and transfer passengers. Verification of the 
examination must be in the form of a written statement signed by a physician and 
placed in the applicants/employees personnel file. 
   
  (G) Drivers who have not been a resident of Texas three years prior to 
employment are required to provide to the transit service provider a motor 
vehicle report (MVR) from the state(s) of previous residence, and submit it to 
the employer before transporting Title III participants. 
     
  (2) Staff Evaluation. Ongoing driver evaluations will be conducted by the 
transit service provider to assure that the highest standards of performance are 
maintained in providing transportation services. A written routine evaluation 
and monitoring procedures, encompassing the following minimum requirements, will 
be established and implemented by the transit service provider. 
 
  (A) Semi-annual observation of all drivers will be conducted by transit 
service provider on a regular route to observe his/her driving techniques. 
   
  (B) Transit service provider will maintain written documentation of semi-
annual evaluation of each driver in its central files. 
     
  (3) Staff In-Service Training. Each AAA will include an annual transit 
training program as part of it's Area Plan Training Plan. The AAA will describe 
the type of transit related training that will be conducted in the region, the 
number of transit training activities, who will be responsible for carrying out 
the identified training activities, the estimated cost of each training activity 
and source of funding. Transit service provider will provide a drivers training 
program that include at least the following. 
 
  (A)  All new drivers will be required to attend a full briefing/job 
orientation session about the transportation program that include a "Driver 
Handbook", required report forms, vehicle operations, vehicle maintenance, and 
geographic area to be served. 
   
  (B) Drivers will be trained by transit service providers to use all special 
equipment installed on the vehicles, such as wheelchair ramps and lifts, oxygen 
equipment, and two-way communication equipment, before transporting Title III 
program participants. 
   
  (C)  Within the first six months of employment, the transit service provider 
will require all new drivers to complete a Texas Education Agency (TEA) approved 
Defensive Driving Course DDC-8. All drivers after initial defensive driving 
course will be provided ongoing continuing education in Defensive Driving 
annually from the transit service provider. Drivers holding a current 
certification from an approved TEA Driver Training Course or an approved School 
Bus Drivers Training Certification are not required to take the course until the 
current Defensive Drivers/Safety Certification expires. 
   
  (D)  Annually all drivers will receive continuing education in "Passenger 
Assistance Techniques Training" provided by the transit service provider. 
   
  (E) All drivers will receive at least a semi-annual briefing from the transit 
service provider, which covers changes in the transportation program, reporting 
forms and vehicle operations, including the operation of special equipment. 
   
  (F) A driver will be provided ongoing training annually by the transit service 
provider in First Aid and CPR. 
   
  (G) A permanent training record will be maintained by the transit service 
provider on all drivers to verify that training has been received. Current 
training certifications will be retained in a permanent file at the transit 
service provider's central office. 
 
       
  sec.273.11. Monitoring.  The AAA will be responsible for evaluating and 
monitoring service outcomes of all Title III transportation providers funded all 
or in part with Title III funds. The transit service provider will make their 
records and files accessible to the AAA staff for review and inspection for 
contract compliance and program performance audits. 
 
   
  sec.273.13. Operational Requirements and Conditions to Enhance Safety.  The 
transit service provider will assure that all vehicles and associated equipment 
are maintained to minimize breakdowns and decrease the chance of accidents. The 
transit service provider will have the following safety equipment in good 
working condition available on each vehicle: 
 
  (1) first aid kit; 
   
  (2) approved fire extinguisher that is annually certified; 
   
  (3) triangular reflective warning devices or flares; 
   
  (4) operating flashlight; 
   
  (5) working seat belts for front seat passengers; 
   
  (6) accessory boarding devices including step and grab bar; 
   
  (7) dual side mirrors with convex mirror attachment; 
   
  (8) back up lens. 
 
     
  sec.273.15. Record keeping and Inventory Requirements.  To protect the public 
investment in real property and equipment purchased in whole or in part with 
state and/or federal public funds administered by the AAA, the transit service 
provider will comply with the standards described in this section. 
 
  (1) Property Records. The transit service provider must maintain property 
records that include: 
 
  (A) a description of the property; 
   
  (B) a serial number or other identification number; 
   
  (C) the source of the property; 
   
  (D) the title holder; 
   
  (E) the acquisition date and cost of the property; 
   
  (F)  percentage of state and/or federal participation in the cost of the 
property; 
   
  (G) the location use and condition of the property; 
   
  (H) the mileage at the last AAA inspection; and 
   
  (I) any ultimate disposition data including the date of disposal and sale 
price of the property. 
     
  (2) Inventory. The transit service provider will cooperate with AAA 
representatives in performing at least one yearly physical inspection of all 
real property and equipment used in the provision of elderly transportation. 
However, during the time period between these physical inspection, the transit 
service provider shall promptly notify the AAA in writing of all changes in the 
status of such real property and equipment in order that AAA records may be kept 
current. The transit service provider will maintain an up to-date inventory list 
of all transit vehicles (regardless of funding source used to purchase vehicles) 
used to transport elderly persons. Property shall remain on the transit service 
provider's inventory list until such time as the property is formally disposed 
of in accordance the requirements outlined in sec.273.23 of this title (relating 
to Disposition) and the Common Rule (45 Code of Federal Regulation Part 92.31 
and 92.32). Not withstanding the foregoing, the transit service provider will, 
where applicable, be bound by, and will comply with, the inventory requirements 
specified in the common rules (45 Code of Federal Regulation 92.31 and 92.32) 
   
  (3) Control System. The AAA shall investigate any loss, damage, or theft of 
transit property reported by the transit service provider. The transit service 
provider must develop a control system to ensure adequate safeguards to prevent 
loss, damage, or theft of transit property. The transit service provider will 
promptly notify the AAA in writing of all property losses, damages, or property 
thefts within 10 working days of the discovery. 
 
     
  sec.273.17. Maintenance Requirements. 
 
  (a) Real Property. The transit service provider will perform necessary 
maintenance and grounds keeping to preserve the value of the original state 
investment and its physical appearance and integrity. Failure to perform 
necessary work may be grounds for the AAA to direct the transfer or disposition 
of the real property purchased with Title III funds. The AAA will provide a 
written report of the transit service providers inability to properly maintain 
the real property to all other local, state, and federal agencies who provide 
funding to the purchase of equipment and day-to-day operations of the transit 
program. 
   
  (b) Equipment. Transit service provider will maintain equipment in accordance 
with the manufacturer's recommended servicing schedule to ensure that the 
equipment remains in good condition. Failure to observe such scheduling may be 
grounds for the AAA to direct the transfer or disposition of the real property 
purchased with Title III funds. The AAA will provide a written report of the 
transit service provider's inability to properly maintain the real property to 
all other local, state, and federal agencies who provide funding to the purchase 
of equipment and day-to-day operations of the transit program. 
   
  (c) Vehicle Maintenance. An aggressive vehicle maintenance program will do 
much to assure that breakdowns are minimized. Transit service providers will 
have in place an established written preventive maintenance program. The written 
prevention program should encompass the following: 
 
  (1) an informal daily check for operational readiness which is constructed in 
such a way as to document any problems; 
   
  (2)  complete maintenance records on file for each vehicle; and 
   
  (3)  regular scheduled maintenance service checklists based on time and/or 
mileage usage of the vehicle. 
 
       
  sec.273.19. Title. 
 
  (a) Ownership. The title of all real property and equipment will be vested in 
the transit service provider, unless explicitly authorized in writing by the 
TDoA or other state and/or federal funding agencies. 
   
  (b) Non-encumbrance. The transit service provider will not execute any leases, 
pledge, mortgage, lien, or other contract touching or affecting the federal or 
state interest in any project facilities or equipment; nor shall the transit 
service provider, by any act or omission of any kind, adversely affect the 
federal or state interest or impair its continuing control over the use of 
project facilities or equipment. 
 
     
  sec.273.21. Vehicle Purchase. <ol> The AAA will develop and identify 
coordination efforts to purchase transit vehicle in its Area Plan with federal, 
state, local, and private sector funding and providers agencies. The AAA will 
identify and encourage coordination efforts between the transit service provider 
and other transit funding and provider agencies. Transit service providers using 
Title III funds all or in part to purchase transit vehicles will coordinate 
efforts with other funding and provider agencies identified in the AAA's Area 
Plan. All transit vehicles purchased all or in part with Title III funds by the 
AAA and/or transit service provider are required to use "Vehicle 
Specifications," designed to serve elderly and disabled persons developed and 
approved by the Texas Department of Transportation (Inapt). 
 
   
  sec.273.23. Disposition. Disposition of Vehicles and Transit Equipment.  The 
federal standards contained in the common rules (45 Code of Federal Regulation 
Part 92.31 and Part 92.32) will govern the disposition of real property and 
equipment purchased under contracts in which the TDoA provides all or part of 
the local share requirement of federally assisted capital improvements. In cases 
where the common rule does not require reimbursement of the federal grantor 
agency, the TDoA will similarly release the state's interest in the capital 
improvement provided that the state's percentage share of any proceeds derived 
by the contractor in the disposition process will be used by the AAA for public 
transportation purposes similar to those for which the contract award was 
originally made. In cases where the common rule (45 Code of Federal Regulation 
Part 92.31) require reimbursement of the federal grantor agency, the AAA will 
provide the TDoA a percentage of the proceeds of any such disposition equal to 
the percentage of the state's original investment in the property or equipment. 
Once disposition is authorized, the AAA will relinquish title to the property 
through either sale, auction or transfer to a third party. The TDoA will be 
notified by the AAA of any such dispositions and provide information necessary 
to delete the property inventory records described in sec.273.17 of this title 
(relating to Record keeping and Inventory Requirements). All real property and 
equipment obtained through contracts in which the AAA's contractual interest 
includes federal funds or state monies as 50% of a non-federally assisted 
capital improvement will be governed by the disposition standards contained in 
paragraphs (1) and (2) of this section. The TDoA will be notified of the 
contractor's intent to proceed with such dispositions and provide information 
necessary to delete the property from inventory records described in sec.273.21 
of this title (relating to Record Keeping and Inventory). Prior to disposition 
of property under the terms of this transit service provider, the AAA will 
obtain written concurrence from the TDoA. Once disposition is authorized, the 
transit service provider will relinquish title to the property through either 
sale, auction, or transfer to a third party. 
 
  (1) Disposition Criteria. 
 
  (A)  Vehicles disposition may occur when the current per unit market value is 
less than $5,000. 
   
  (B) Other equipment may be disposed of when the current per unit market value 
is less than $5,000. 
   
  (C) Real Property may be disposed of when it is no longer needed for the 
originally authorized purpose, the transit service provider will request 
disposition instructions from the AAA pursuant to the subsection. 
   
  (D) Exceptions to the standards will be considered by the AAA on a case-by-
case basis. In such instances, the transit service provider will furnish 
information requested by the AAA to determine if an exception is warranted due 
to special circumstances. 
     
  (2) Distribution of Disposition Proceeds. Refunds are not required in cases 
where the disposition criteria contained in paragraph (1)(A) of this section is 
met by the seller. If paragraph (1)(A) have been met, the AAA will release its 
transit service providers interest in the capital improvement. The AAA will 
similarly release its contractual interest in cases where exceptions are granted 
for early disposition in accordance with the provisions contained in paragraph 
(1)(D) of this section. However, the AAA's release of its interest in a capital 
improvement is contingent upon the contractor's assurance that the TDoAs 
contractually specified percentage share of any proceeds derived by the transit 
service provider for public transportation purposes similar to those from the 
contract award was originally made. 
 
     
  sec.273.2. Transportation Outreach. <ol> Transit service providers will 
develop a written plan that will make eligible persons aware of available, 
accessible transportation in their communities in accordance with Targeting 
Standards and the Older Americans Act. 
 
   
  sec.273.27. Prohibited Activities. 
 
  (a) Private or Personal Use Of Vehicles. Vehicles purchased by or funded all 
or in part by the TDoA may not be used for personal business or pleasure. 
   
  (b) Exceptions. Personally owned vehicles for hire are exempt from this rule. 
 
     
  sec.273.29. Exemption statue. <ol> Vehicles funded all or in part through the 
TDoA to provide transportation to the elderly are exempt from the requirements 
applicable to government bus companies to pay registration fees per passenger 
bus and fees for passenger seats for each bus as required pursuant to 16 TAC, 
Part I, Chapter 5, sec.5.38, (relating to Cancellation, Suspension, and 
Reinstatement of Intrastate Certificates or Permits) in accordance with Senate 
Bill 298, 69th Legislature, 1985, Chapter 54. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on February 24, 1993. 
 TRD-9319478 
  Mary Sapp 
 Executive Director 
 Texas Department on Aging 
    Earliest possible date of adoption: April 5, 1993 
 For further information, please call: (512) 444-2727